In Re: Hawaji Sakharam Mhalaskar

Pratt, J.—This is an application for revision of an order of the Sub-Divisional Magistrate of Poona withdrawing u/s 528 two cases pending before the Second Class Magistrate of Vadgaon to his own Court and then referring them to trial to the Court of the First Class Magistrate of Khed.

The main ground on which Mr. Limaye rests his application is that these orders of transfer were made without notice to the other party. No doubt the trend of the decisions in this Court appears to have been that an order u/s 528 made without notice is illegal: Imperatrix v. Sadashiv Narayan 22 B. 549 : 11 I. D (N.S.) 947. In re Nageshwar Sitaram 1 Bom. L.R. 347, and Vedu Bapu V. Bhagwandas 5 Bom. L.R. 28. But these cases were doubted in In re Yiri 6 Bom. L.R. 856 : 1 Cr.L.J. 934, and I understand that the recent practice of this Court has been to treat want of notice as not amounting to illegality. I confess that is my view. For the section does not require issue of notice and that too is the view of the Allahabad High Court, See Dukhi Kewat, In the matter of the petition of 28 A. 421 : 3 A.L.J. 227 : A.W.N. (1906) 76 : 3 CrI.L.J. 327. The question of notice seems to me to be one of propriety rather than of legality The question of propriety is one to be decided on the facts of each particular case, and I think here the cases having been pending before the Magistrate for two months and for eleven hearings and charges having been framed, it was improper for the Magistrate to have acted on the application of one party without giving the other party an opportunity of being heard.

I would, therefore, reverse the orders of transfer and direct the Magistrate to rehear the matter after issue of notice to both the parties.

Heaton, J.

I concur.