There is no question that “personal interest” within the meaning of the section is not limited to private interest, and that it may well include official interest also. But what is the extent of the interest which will attract the disability is a subject on which difference view are possible and have been taken. Section 556 itself indicates the difficulty. The Explanation to the section runs in these terms:
“A Judge or Magistrate shall not be deemed a party, or personally interested, within the meaning of this section, to or in any case by reason only that he is a Municipal Commissioner or otherwise concerned therein in a public capacity or by reason only that the has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case.”
This shows that to be connected with a case in a public capacity is not by itself enough to render the person incompetent to try it. Even if he had made an enquiry in connection with this case, it would not matter. But look at the illustration:“A, as collector, upon consideration of information furnished to him, directs the prosecution of B for a breach of the Excise laws. A is disqualified from trying this case as a Magistrate.”
It is evident from the Words of the illustration that if a prosecution is directed by a person in one capacity, he shall not try the case acting in another capacity as a Magistrate.
The explanation and illustration lend some support to the view that there is a distinction between a passive interest and an active interest, and that it is only in the latter case that the disqualification arises or intervenes.
Under sub-s. (3) (a) of S. 2, Assam Food Grains Control Order “Director” means “the Directory of Supply, Assam, and includes, for the purpose of any specific provision of this Order, any other officer duly authorised in that behalf by him or by the Provisional Government by notification in the Official Gazette”. Section 38 provides:
“No prosecution in respect of an alleged contravention of any provision of this Order shall be instituted without sanction of the Director.”.
A little confusion is likely to arise from the employment of the word “Director” in the Control Order and the word “directs” in the illustration to S. 556 of the Code. It has to be borne in mind that a sanction by the Director within the meaning of the Code does not necessarily mean “a direction given by him that the accused should be prosecuted.”
In both cases of sanction and direction, an application of the mind is necessary, but there is this essential difference that in the one case there is a legal impediment to the prosecution if there be no sanction, and in the other case, there is a positive order that the prosecution should be launched. For a sanction, all that is necessary for one to be satisfied about is the existence of a prima facie case. In the case of a direction, a further element that the accused deserves to be prosecuted is involved. The question whether a Magistrate is personally interested or not has essentially to be decided on the facts in each case. Pecuniary interest, however small, will be a dis-qualification, but as regards other kinds of interest, there is no measure or standard except that it should be a substantial one, giving rise to a real bias, or a reasonable apprehension on the part of the accused of such bias. The maxim “Nome Debt esse judex in propria sua causa” applies only when the interest attributed is such as to render the case his own cause. The fulfillment of a technical requirement imposed by a statute may not, in many cases, amount to a mental satisfaction of the truth of the facts placed before the officer. Whether sanction should be granted or not may conceivably depend upon considerations extraneous to the merits of the case. But where a prosecution is directed, it means that the authority who gives the direction is satisfied in his own mind that the case must be initiated. Sanction is in the nature of a permission, while a direction is in the nature of a command.
Let us now examine some of the decisions on the subject. For the appellant, strong reliance was placed on the Judgment of the Privy Council in Gokulchand Dwarkadas v. King, 52 Cal. W. N. 325 (P. C.), and it was argued on the basis of some of the observations of the Judicial Committee that a sanction was an important and substantial matter and not a mere formality. The facts in that case were that while there was a sanction of the Government for a prosecution under the Cotton Cloth and Yarn Control Order; there was nothing in the sanction itself, or in the shape of extraneous evidence, to show that the sanction was accorded after the relevant facts were placed before the sanctioning authority. To quote their Lordships’ own Words:
“There is no evidence to show that the report of the Sub-Inspector to the District Superintendent of Police, which was not put in evidence, was forwarded to the District Magistrate, nor is there any evidence as to the contents of the endorsement of the District Magistrate, referred to in the sanction, which endorsement also was not put in evidence. The prosecution was in a position either to produce or to account for the absence of the report made to the District Superintendent of Police and the endorsement of the District Magistrate referred to in the sanction, and to call any necessary oral evidence to supplement the documents and show what were the facts on which the sanction was given.”
It is in this connection that their Lordships emphasise that the sanction to prosecute is an important step constituting a condition precedent, and observe:
“Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or without a sanction without a knowledge of the facts of the case. Nor, in their Lordships’ view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of cl. 23.”
This, however, is no authority for the position that a sanction stands on the same footing as a direction. It is true that the facts should be known to the sanctioning authority; but it is not at all necessary that the authority should embark also on an investigation of the facts, deep or perfunctory, before according to the sanction. The decision lends no support to the view that where there is a sanction, the sanctioning authority is disabled under S. 556 of the Code from trying the case initiated as a result of the sanction. On the other hand, there is plenty of support for the opposite view.
In the very early case of Government of Bengal v. Heera Lall Dass, 17 W. R. Cr. 39 (Cal.), at a time when there was no such statutory provision as S. 556 of the Code but only the general rule of law that a man could not be judge in a case in which he had an interest, the facts were that a Sub-Registrar, who was also an Assistant Magistrate, having come to know in his official capacity as a registering officer that an offence under the Registration Act had been committed, sanctioned a prosecution, and subsequently tried the case himself. A Full Bench consisting of Sir Richard Couch C. J. and five other learned Judges came to the conclusion, after an examination of some of the English cases, that the trial was not vitiated. The learned Chief Justice said:
“In this case, I think, the Sub-Registrar has not such an interest in the matter as disqualifies him from trying the case; and I may observe with reference to some of the arguments that have been used as to the Sub-Registrar having made up his mind, and that the accused would have no chance of a fair trial, that the sanction of the superior officer, the Registrar, is required before the prosecution can be instituted, and certainly I do not consider that the prosecuting will not be instituted unless the Sub-Registrar has made up his mind as to the guilt of the party. It is his duty, when he comes to know that an offence has been committed, to cause a prosecution to be instituted, by which I understand that there is prima facie evidence of an offence having been committed, that there is that which renders it proper that there should be an enquiry, and the Registrar accordingly gives his sanction to it; and certainly, I cannot suppose that, because an officer in his position sanctions the institution of a prosecution, his mind is made up as to the guilt of the party and that he is not willing to consider the evidence which may be produced before him when he comes to try the case. In this case, there appears to be no such interest as would prevent the case from going before the Magistrate as the trying authority…….”
In Queen Empress v. Chenchi Reddi, 24 Mad. 238, it was pointed out that when there was only an authorization and not a direction, there was no supervening disability, and the case of Girish Chunder v. Queen-Empress, 20 Cal. 857, was distinguished on the ground that there the Magistrate had taken a very active part in connection with the case as an executive officer. The Bombay High Court went even a step further in the case reported in Emperor v. Ravji Nanaji, 5 Bom. L. R. 542, where the Magistrate who tried the case had earlier held a departmental enquiry and forwarded the papers to the Collector with his opinion that there was sufficient evidence to justify a criminal prosecution. As he did no more than express an opinion that there was evidence, which he had neither taken nor gifted, which made a criminal prosecution desirable, it was held that the Magistrate was not disqualified from holding the trial, though, no doubt it would have been more expedient-had the Collector sent the case for disposal to another of this subordinates.
Ref: AIR 1952 SC 405 : (1953) SCR 126 : (1953) CriLJ SC 163