EMPEROR Vs. GUNDO CHIKKO KULKARNI

JUDGEMENT

(1.) This is an application for revision by the accused, who has been convicted by the Resident Magistrate, Dharwar, under Section 414, Indian Penal Code, in that he assisted in the disposal of the property stolen by one Vithal. Vithal had been prosecuted before that Magistrate in respect of nine oases of theft, and the present accused was a witness for the prosecution in those cases. After the close of the trials, the Magistrate ordered the Police to send up a charge sheet in respect of the accused. The Police did so, and in the trial that ensued the accused was convicted and sentenced as stated above.

(2.) The point urged in revision is, that the Magistrate took Cognizance suo motu under Section 190(c), and that he ought to have followed the procedure enjoined by Section 191, Criminal Procedure Code. The additional Sessions Judge, who heard the appeal, was of opinion that the Magistrate took cognizance under Section 351 of the Criminal Procedure Code. We think, however, that cognizance was taken by the Magistrate neither under Section 351 nor under Section 190(c). The mere fact that the Magistrate directed the Police to institute proceeding shows that the Magistrate did not take cognizance himself of the offence at the time-it was only after receipt of the police report that he took an J, then, under, Section 190 (b).

(3.) Nevertheless the question still remains whether, the Magistrate having in this way directed the prosecution of the accused was competent to hold the trial. The Government Pratt Pleader relies on the explanation to h. 553 of the Criminal Procedure Code. Under that explanation a Magistrate or a, Judge who is merely concerned with a case by reason of his, discharging some other public function or being concerned with it is some public capacity is not, on that ground alone, to be deemed to be personally interested. This explanation does not apply when the Magistrate himself has directed the prosecution, For a Magistrate cannot be both a prosecutor and a Judge and this principle is embodied, in the illustration to the section. This, distinction is made clear in Queen-Empress V/s. Pherozaha Pestonji and Emperor V/s. Bisheshar Bhattacharya