Emperor Vs. Gundo Chikko Kulkarni

criminal procedure code(act v of 1898), sections 55g, 190(0), 191-magistrate-order to police to charge a witness as accused-accused sent up for trial with police report-cognizance of the offence-trial-personal interest of the magistrate.;after the close of a trial, the trying magistrate ordered the police to send up a charge sheet in respect of a witness for the prosecution. the police did so. the magistrate tried the accused and convicted him. the accused applied to the high court contending that as the magistrate took cognizance suo motu under section 190(c) of the criminal procedure code, he ought to have followed the procedure enjoined by section 191 :-;(1) that the magistrate took cognizance of the offence under b. 190(6) of the criminal procedure code ;;(2) that the magistrate having directed the prosecution of the accused was not competent to hold the trial by reason of section 556 of the code.;under the explanation to section 556 of the criminal procedure code, 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 in some public capacity is not on that ground alone to be deemed to be personally interested. the explanation does not apply when the magistrate himself has directed the prosecution. for a magistrate cannot be both a prosecutor and a judge. - .....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 an3. 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. pherozaha pestonji and emperor v. bisheshar bhattacharya4. we, therefore, reverse the conviction and sentence and direct fine to be refunded.5. the accused pleader undertakes that the order for disposal of the property will be carried out and the refunded fine of rs. 100 will be paid as compensation to bhimrao. if these terms are fulfilled we shall not order a re-trial. the case is adjourned for a fortnight for performance of the undertaking.