CHHOTEY LAL Vs. TINKE LAL

JUDGEMENT

(1.) This is an application in revision by Chhotey Lal against the order of the District Magistrate of Shahjahanpur, transferring the applicant's case from the Court of Mirza Sultan Ahmad Beg, Sub-divisional Magistrate, Shahjahanpur, to that of Mr. Frank Rawat, Magistrate, Frist Class, Shahjahanpur. Two grounds have been taken by the applicant : (1) that no notice was given to the applicant before the order of transfer, and (2) that the District Magistrate had no power to review his former order. Though Section 528, Criminal P.C. does not provide for any notice to the opposite party, yet it has been laid down by all the High Courts that it is desirable that a notice should be given to the opposite party before an order of transfer is passed. At the same time, it has been held by several High Courts that a mere omission to give notice will not make the order illegal and would be no ground to set aside the order. The omission to give notice is a mere irregularity and is not a sufficient ground for setting aside the order of transfer : vide. Gobinda Swain V/s. Emperor 1923 Pat. 228 and Bagh Ali V/s. Mohammad Din. 1926 Lah. 156. The learned Counsel for the applicant relies on two cases of this Court : Umrao Singh V/s. Fakir Chand (1881) 3 All 749 and Jageshar V/s. Emperor 1929 All 932. In both these cases the transfer application was made after the prosecution evidence had been finished and the learned Magistrate, who transferred the case did so without giving any reason in his order. In Jageshar V/s. Emperor 1929 All 932, the trial of the accused had proceeded in one Court. The complainant and his witnesses had been examined and the witnesses had been tried and tested by cross-examination and the trial Court had framed a charge against the accused presumably on the ground that a prima facie case had been made out. It was held that the case ought not to be removed from the file of the trial Magistrate and transferred to another Magistrate unless a very strong case had been made out to justify the transfer. Similarly in Umrao Singh V/s. Fakir Chand (1881) 3 All 749, the evidence of the complainant and his witnesses had been taken and no reason was given by the Magistrate.

(2.) In this case, the evidence of the parties has not even begun and the learned District Magistrate has given reasons for the transfer. He states: In view of the fact that the Magistrate has already been trying these Arya Samaj cases and the accused says he will call the Magistrate as a witness, I transfer the case to Mr. Rawat for disposal, If the accused wanted to produce the Magistrate before whom the case was as his witness, the Magistrate could not try the case himself.

(3.) As regards the second ground, Section 369, Criminal P.C. relates only to the alteration of judgment. Although this section refers in express terms, to judgments under Chap. 26 of the Code, still it is clear that the principle laid down therein applies also to final orders which are in the nature of judgment. The section does not apply to orders which are not in the nature of judgment. The order of transfer cannot be regarded as an order in the nature of a judgment. Generally an order in the nature of a judgment is one which is passed on full inquiry and after hearing both parties.