RAM PERSHAD Vs. STATE OF DELHI

JUDGEMENT

(1.) Proceedings under section 145 of the Code of Criminal Procedure were pending in the Court of Shri N.L. Kakkar, S. D. M., Mehrauli. After the conclusion of the evidence and at the stage of hearing the final arguments an application was made by. Ram Rakha Mal respondent No. 2 under section' 528 of the Code to the Additional District Magistrate for transfer of the case to some other Magistrate on the ground that the trial of the proceedings was being delayed in the Court of Shri Kakkar. By order dated June 16, 1964. Shri S. C. Pandey, Additional District Magistrate, transferred the case under section 145, Criminal Procedure Code, from the Court of, Shri N. L. Kakkar to that of Shri S. D. Arya, S.D.M., Niam-ud-din, without issuing any notice of the transfer application to Ram Parshad petitioner. The solitary ground on which the order for transfer was passed, is couched in the following words in the order under revision:-

(2.) Not satisfied with the order of the Addional District Magistrate dated 16-6-1964 Ram Pershad went up to the Court of Session inrevision and prayer for the said, order being set aside. Shri P. P. R. Sawhney, Sessions Judge, Delhi, has on 25- 3-1965 recommended for the setting aside of the order under revision on the ground that the said order was passed without notice to the petitioner. Setting aside of the order under revision has also been recommended by the learned sessions Judge, OH the additional ground that the solitary reason of delay for which the case was tranferred from one S. D. M. to the other by the Additional District Magistrate on the complaint of one of the parties was not a good ground for transfer of the proceedings in the circumstances of this case.

(3.) I am in full agreement with the recommendation of the learned Sessions Judge as to the invalidity of the ground on which the case was transferred by the Additional District Magistrate in the circumstances of this case. There is, however, a good deal of confliet of authorities on the second question. It has no doubt been held by S. B. Teja Singh, C. J. in Joginder Singh v. Amar Singh, and by some other Courts that when one of the parties applies for the transfer of a case under section 528 of the Code of Criminal Procedure notice should be given to the other party though it is not so provided in the section. In the Pepsu case the order of the District Magistrate transferring a case on an application of a party was set aside on the ground that it had been passed without giving notice to the complainant. Similarly in Gowardhan Das Kapur v. Abbas Ali2 it was held that the functions of the District Magistrate under section 528 of the Code of Criminal Procedure empower him to transfer a case, but not only sufficient ground for transfer should be shown but it is also necessary to give a notice of the transfer application to the other side before the application is granted.