NATHU RAM Vs. STATE

JUDGEMENT

(1.) This is an application by Nathu Ram for transfer of a criminal case from the court of the Sub Divisional Magistrate, Bali, to some other court in the same district. The matter came up before one of us on 2-2-1951. It appears that the applicant had not applied to the District Magistrate under Section 528, Criminal P. C, & came direct to this court for transfer under Section 526 of the same Code. Learned counsel urged that the applicant was entitled to come direct to this court under Section 526, & relied on two cases in support of his submission. Therefore, the point was referred to a Division Bench for disposal, & has thus come before us.

(2.) It is not denied that before the amendment of Section 526 by the addition of Sub-section (8) in 1923, the practice in all the High Courts in India was that an application under Section 526 was not entertained unless the applicant had first moved the District Magistrate under Section 526 or wanted a transfer outside the district. The reason for this practice is not difficult to see. If a party wants transfer only from one Magistrate to another in the same district, he has got the District Magistrate at hand, & should apply to him. It is generally accepted that such applications of transfer would be expeditiously disposed of, & that in many cases it would not be necessary to come to the High Court at all. It is only where the District Magistrate dismisses the application under Section 528, that it would become necessary for the party to come to the High Court. It was on this basis that the High Courts uniformly insisted before 1923 that a party must first apply to the District Magistrate under Section 528 before coming to the High Court.

(3.) Learned counsel, however, argues that after the introduction of Sub-section (8) in Section 526, the law must be deemed to have been changed, & the party given the right to come direct to the High Court for transfer. Section 526(8) reads as follows: