B. R. ARCRA, J. - (1.) THIS miscellaneous petition is directed against the order dated June 17, 1987, passed by the Munsif and Judicial Magistrate, Fiist Class, Begun, by which the learned Magistrate took cognizance against the petitioner fcr the offences under Section 29 of the Police Act and Sections 174, 187 and 188 of the Indian Penal Code.
(2.) SHRI H. R. Kudi, Munsif and Judicial Magistrate, Begun, on June 17, 1987, filed a complaint against the accused-petitioner Uma Kant Bhatt in the Court of the Munsif and Judicial Magistrate, Begun. It was alleged in the complaint that criminal Case No. 506 of 1982 State vs. Phool Chand was pending in the Court of the Munsif and Judicial Magistrate, First Class, Begun, for considerably a long time and in the case, warrant of arrest was issued and a specific note was appended on the warrant of arrest that the C. I. Uma Kant Bhatt, Station House Officer, Police Station, Rawatbhata, should personally Jook-into the matter and get the warrant of Arrest executed. It was, also, mentioned in the note that in case the service of the warrant is not effected then a list of the property of the accused should be prepared and the C. I. Uma Kant Bhatt should appear in the Court alongwith the list. The accused-petitioner did not comply with the order and neither get the warrant executed personally nor took personal interest in the execution of the warrant and, therefore, the warrant could not be executed. He, also, did not appear in the Court inspite of a specific direction of the Court. As the accused-petitioner Una Kant Bhatt did not comply with the order passed by the Court, therefore, on June, 17, 1987, an order was passed for filing a criminal complaint against the accused as the conduct of the accused-petitioner falls within the purview of cognizable offence. On this complaint, SHRI H. R. Kudi, the Munsif and Judicial Magistrate, Begun, himself took the cognizance on the same day against the accussed - petitioner for the offences under Sec. 29 of the Police Act and Sec. 174, 187 and 188 of the Indian Penal Code. He, also, granted, psrsonal exemption to the complainant, i. e. to himself. It is against this order that the present miscellaneous petition has been filed. It is contended by the learned counsel for the petitioner that the order dated June 17, 1987, deserves to be quashed and set - aside as it has been passed by the complainant himself and no person can be a Judge in his own cause. The learned Public Prosecutor, on the other hand, has supported the order, passed by the Court below. I have considered the rival submissions made by the learned counsel for the parties. Section 352 of the Code of Criminal Procedure provides that except as provided in Sections 344, 345, 349 and 350 Cr-P. C, no Magistrate shall try any person for any offence referred to in Section 195 Cr. P. C. when such offence is committed before himself or in the contempt of his authority or is brought to his notice as such as a Judge or a Magistrate in the course of a judicial proceeding. The mischief, which is sought to be prevented by Section 352 Cr. P. C. is that the person, who has pre-judged the matter and filed the complaint, should not decide the same. It is a fundamental rule of administration of justice that a person cannot be a judge in his own cause and where a judge is interested in the result of a cause then he cannot sit in a judgment upon it. The Legislature, by making provisions, can make a man a Judge in his own cause, though it may be contrary to the general rules, but in the absence of any statutory authority or the operation of necessity, no man can be a judge in his own cause. A person having a direct interest in the subject matter of the inquiry, cannot take part in adjudicating upon it. No man can be at one time be a Judge and a suiter. The maxim MEMO DEBET ESSE JUKX IN PROPRIA SUA CAUSE, i. e. , no man can be a Judge in his own cause, is a secred maxim and precludes the Judge who is interested in the subject-matter of a dispute, from acting as a Judge therein. Injudicial proceedings, justice must not only be done but it should appear to have been done and the trial must not leave any room for a reasonable apprehension in the mind of the litigant for assuming a possibility of bias. The offences in the present case are covered by Section 195 Cr. P. C. and do not fall under any of the Exceptions. Prohibition provided under Section 352 Cr. P. C. is an absolute and a Magistrate, whose order has been disobeyed and who has filed the complaint, cannot try the person guilty of disobedience of his own order. In the present case, Shri H. R. Kudi, Munsif and Judicial Magistrate himself was a complainant and he himself took cognizance against the accused by its order dated June 17, 1987, and, therefore, the order taking cognizance against the petitioner deserves to be quashed and set-aside. In the result, the miscellaneous petition, filed by the petitioner, is allowed. The order dated June 17, 1987, passed by the learned Munsif and Judicial Magistrate, Begun, is set-aside and the case is remanded to the learned Munsif and Judicial Magistrate, Begun, to proceed in accordance with law. Since Shri H. R. Kudi has already been transferred and some other Judicial Officer is working as the Munsif and Judicial Magistrate, First Class, Begun, so the matter can be proceeded under law and the order passed in this miscellaneous petition will not come in the way of the Magistrate to take or not to take the cognizance or to proceed with the trial because the prohibition is personal and does not refer to the office of the Magistrate, whose order has been flouted or disobeyed and the sameness of the individual and not the sameness of the capacity has been precluded to act as a Judge. . ;