JUDGMENT John Edge, Kt., C.J.
1. This is an application under Section 526 of the Code of Criminal Procedure to transfer a case from the Court of one Magistrate to the Court of some other Magistrate. It is said in the application that, after examining some of the witnesses for the prosecution, the Deputy Magistrate, before whom the case was, personally inspected the ground and made inquiries relative to the subject of the complaint from persons present at the time of the inspection: also that he expressed a wish that some of the accused should compromise the case. In support of the application the decision in Queen-Empress v. Manikam I.L.R. 19 Mad. 263, and Hari Kishore Mitra v. Abdul Baki Miah I.L.R. 21 Cal. 920, have been relied on. The Magistrate has stated that he did inspect the place. He has denied that he made any inquiry from any persons except the witnesses in their examination. He has stated that he directed the patwari to prepare a plan.
2. It appears, to me that it never could have been the intention of the Legislature that in a criminal case, in which the evidence was conflicting or was difficult to understand by a person not acquainted with the locality, the Magistrate trying the case should not go and see the locality for himself. It is highly convenient that he should adopt such a course, if the evidence is conflicting or if the guilt or innocence of the party depends upon local peculiarities of situation which cannot be understood except by the Magistrate seeing the place himself. When a Magistrate goes to view a place for the purpose of understanding the evidence, he should be careful not to allow any one on either side to say anything to him which might prejudice his mind one way or the other. It would be practically impossible in some cases that the Magistrate should be accompanied by each side. Take the cage of a dacoity with, let us say, twenty prisoners. It might become necessary for the Magistrate to see the village in order rightly to appreciate the evidence for the prosecution or the evidence for the defence. It surely could not be the law that the Magistrate should not go and see the village in order to understand the case unless he was accompanied by some one for the Crown and all the twenty dacoits in fetters, they not being represented by any one. In this particular case it appears to me that the Magistrate acted wisely. The question was--Had the shrubs been torn up by the accused, as said by the prosecution, or had they been destroyed by the accumulation of rain, as was said by the defence? It would probably be difficult to decide in such a case, for example, whether six witnesses for the prosecution were to be believed who might say that the shrubs had been destroyed by the accused, or whether six witnesses for the defence were to be believed who might say that an accumulation of rain water had destroyed the shrubs. A Magistrate does not make himself a witness by going to a place and viewing it for the purpose of understanding the evidence, any more than does a Judge in England who goes to view a place, or do jurymen who view a place under an order, make himself or themselves witnesses in the case. It would be seldom that a Magistrate, or a Judge or jury could come to a correct conclusion on conflicting evidence if they did not import into the consideration of the evidence before them, not only common sense, but also common knowledge of what ordinarily passes in life. In this case 1 do not see that the Magistrate has done anything improper or anything to suggest to my mind that a fair and impartial trial will not be had before him. It is very possible that the accused may think that the Magistrate's mind may have been biassed against their case by what he saw on the view. Possibly the view explained to the Magistrate's mind on which side the truth was, and the accused may be under the impression, rightly or wrongly, that the view would support the case for the prosecution and show that the case for the defence was utterly improbable. But the ends of justice are that the truth should be arrived at, and should be arrived at whether an accused person objects to the truth being ascertained or not. I see nothing here to bring this case within Section 526 of the Code of Criminal Procedure, and I dismiss this application.