1. The petitioner has been convicted under Section 188 of the Penal Code of having disobeyed an order of the Municipal Commissioners of Commillah under Section 256, Beng. Act V of 1876, dated the 29th March 1883.
2. On enquiry we have ascertained that the District Magistrate, who tried and convicted the petitioner, was present as Chairman of the Municipal Commissioners at the meeting of the 29th March 1883, when the order was passed, the disobedience of which forms the subject of the present case.
3. Section 555 of the Code of Criminal Procedure provides that ' no Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try or commit for trial any case to or in which he is a party or personally interested.' (No permission has been applied for in the present case.) The explanation to Section 555 further declares that, 'a Magistrate shall not be deemed to be a party, or personally interested, within the meaning of this section, to or in any case, merely because he is a Municipal Commissioner.
4. That explanation, however, does not, in our opinion, apply to any case in which a Magistrate may have been personally concerned as a Municipal Commissioner in the matter which forms the subject of trial before him. It was rather intended to prevent an objection being raised that from the mere fact that the Magistrate might happen to be a Municipal Commissioner, he was necessarily disqualified from holding a trial in which some municipal matter was involved. It is a very different matter when in the present case we find that the Magistrate is practically one of the prosecutors and the Judge.
5. An objection has been raised before us, which was probably raised before the District Magistrate, that the order, which has been disobeyed, was an illegal order; obviously the District Magistrate having been a party to that order was not a proper person to try such an objection. In the present case, we do not find that the order in question was in any way illegal, but this does not affect the propriety of the trial which has taken place. We would refer to the case of Sergeant v. Dale L.R. 2 Q.B.D. 558. The passage quoted is to be found at pages 566 and 567: 'By the common law, a Judge who has an interest in the result of a suit is disqualified from acting, except in cases of necessity, where no other Judge has jurisdiction. * * * * The law does not measure the amount of interest which a Judge possesses. If he has any legal interest in the decision of the question one way he is disqualified, no matter how small the interest may be. The law in laying down this strict rule has regard not so much perhaps to the motives which might be supposed to bias the Judge, as to the susceptibilities of the litigant parties. One important object, at all events, is to clear away every thing which might engender suspicion and distrust of the tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security. * * * * We are anxious not to be misunderstood in using this language. No right-minded person does, or can, for a moment entertain the thought that the right reverend prelate (or, in the present case, the District Magistrate) who was called upon to act in this case was, or could, be influenced by any consideration of personal interest in the proceeding. * * * The applicant stands upon his legal right and calls upon us to give effect to it.'
6. On these grounds we think that the proceedings before the Magistrate must be set aside and the fine, if paid, refunded.