THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA 455
J UDGE . —Insertion of this word in lieu of the word ‘Court’ in the Code of 1872 makes the disqualification personal and the successor in office of the particular officer can therefore, now hold such trial.
M AGISTRATE . —Includes a Presidency Magistrate.
12 C. W. N. 246.
Trial includes hearing of an appeal.
A S SUCH J UDGE OR M AGISTRATE . —That means he cannot try it in his capacity as a judge or magistrate of the Criminal Court. If the same matter had come before him in another capacity he can try.
Sameness of the individual as distinct from the sameness of capacity. The Section is based on sameness of capacity.
16 Cal.776 of B.
18 Bom. 380 of B.
Contra. —1 Mad. 305-Disqualification based on sameness of the individual.
Section 556
No judge and 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 judgement or order passed or made by himself.
Explanation. —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 in a public capacity, or by reason only that he 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.
Party
Personally interested do not imply mere intellectual interest. It implies something of the nature of an expectation of advantage to be gained, or of a loss or some disadvantage to be avoided, by the person who is said to be interested in the case.
8 Bom. L. R. 947.