KARNACHANDRA Vs. EMPEROR

JUDGEMENT

(1.) HOWEVER reluctant I maybe to interfere with, the exercise of the discretion which the law gives to a District Magistrate in the matter of ordering transfers or withdrawal of criminal cases from the file of one Subordinate Court to another Court and vice versa, I am bound to say that the District Magistrates have to be very careful whenever they are called upon by one party only to exercise such power. Although Section 528 of the Criminal. P.C. does not provide for the giving of a notice to the opposite, party, still on general principle notice should be given to the party affected before an order for transfer is made : cf. Ajadhaya Lal v. Prayag Narain [1903] 7 C.W.N. 114. The District Magistrates states in his explanation that no notice is required under Section 528, Criminal P.C. This is so, no doubt, under the statute. But so far back as in 1901 this Court has pointed out in Rao Ramsingh v. Hussain Ali [1901] 14 C.P.L.R. 190 Cr., that before a District Magistrate can transfer a case from one Subordinate Court to another Subordinate Court, notice of such intended transfer should be served upon the parties so as to enable either of the parties to come forward and show cause why such transfer should not be made. The learned Judicial Commissioner placed reliance for this view on the cases of Teacotta Shekdar v. Ameer Majee [1882] 8 Cal. 393, Imperatrix v. Sadasheo [1898] 22 Bom. 549, and Umraosingh v. Fakirchand [1881] 3 All. 749. In a case of a recent data decided by the Bombay High Court and reported as In re Hawaii Sakharam Mhalaskar [1919] 21 Bom. 276, Heaton and Pratt, JJ., pointed out that though the trend of the decisions of that Court, ever since the case of Imperatrix v. Sadasheo [1898] 22 Bom. 549, was to treat an order made under Section 528, Criminal P.C., without notice as illegal, the recent practice was to treat want of notice as not amounting to illegality and that the question of notice was one of propriety rather than of legality, and, as such, it was one to be decided on the facts of each particular case. In that case, as in the present case, the trial had occupied several hearings before the Magistrate, in the course of which the whole of the prosecution evidence was led, charges were framed against the accused, and cross-examination of some of the prosecution witnesses was furnished and the case had stood adjourned for recording the evidence of defence witnesses. Such a stage was regarded as a very late stage of the case and the order of transfer was at the instance of the complainant set aside as improper on the ground that it was passed on the application of one party (i.e. the accused) without giving the other party, the complainant, an opportunity of being heard, and the Magistrate ordering the transfer was directed to hear the matter after issue of notice to both the parties. The principle of this case very fittingly applies to this case also.

(2.) I therefore set aside the order of transfer and direct the District Magistrate to rehear the application for transfer and dispose it of in accordance with law.