1. In this case the accused has been convicted for failing to remove or alter the spouts of his house which discharge water on the high road, and the conviction has been bad as for a breach of Bye-law No. 19 of the Suburban Municipality made under the provisions of Section 313, Beng. Act V of 1876.
2. The first point raised before us is that the conviction is bad, because it was had before a Bench of Magistrates consisting, amongst other's, of Mr. Sterndale, the Vice-Chairman and a salaried officer of the Muncipality. We think that this objection is a sound one, anything contained in Section 555+ of the present Code of Criminal Procedure notwithstanding. That section enacts 'that no Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court, try any case to, or in which he is a party or personally interested,' and then there is an exception as follows: 'A Judge or 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.' It appears to me that the object of this exception was to remove a disqualification which existed according to the law as laid down in a case decided by this Court before the passing of the present Code of Criminal Procedure, a disqualification that is which, to a gentleman who, being merely a Municipal Commissioner, and having no further interest in the subject-matter of the case, was reasonably thought to be unnecessary in the interests of justice. But we think that the present case is altogether different, A gentleman who, without remuneration, is merely discharging a public and honorary office, and who has no personal interest in the proceedings of the Corporation or Municipality, may well be supposed to be free from that bias which the jealousy of the law presumes in other persons more immediately interested. Such immediate and disqualifying interest does, we think, exist in the case of a gentleman whose time and services are inconsideration of a salary given to carry on the work of a Municipal Corporation. The jealousy of the law must presume that such a person, however upright and honourable be his character, is disqualified from taking part in judicial proceedings in which the Municipality is ipso facto the prosecutor. (The rest of the judgment is not material for the purposes of this report).
3. I entirely concur in the judgment just delivered. I desire only to add, with reference to the first point, that it seems to me that the Legislature in Section 555 has, by implication, upheld the principle upon which the case of Wood v. Municipality of Calcutta I.L.R. 8 Cal. 891 was decided. In the explanation in Section 555, it is simply laid down that 'a Judge or 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.' Having that case before them the Legislature simply limited the explanation to the disqualification of a Commissioner in a case in which the Municipality or Corporation may be interested; they did not include in the explanation the case of a salaried officer of a Municipality or Corporation, and the principle on which the case of Wood v. The Municipality of Calcutta I.L.R. 8 Cal. 891 was decided, was that a salaried officer of the Municipality is incompetent to sit as a Judge in a case in which that Municipality is interested.
+[Case in which judge or Magistrate is personally interested.
Section 555: No judge or 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 and no judge or Magistrate shall hear an appeal from any judgment or order passed or made by himself.
Explanation.--A judge or Magistrate shall not be deemed to be a party or personally interested, within the meaning of this section, to or is any case, merely because he is a Municipal Commissioner.]