Madan Lal Chadha vs State

Jagjit Singh, J.

(1) A case against Sardar Singh, Satinder Singh and Ram Rattan, under

(2) Shri Rajinder Jain Additional District Magistrate (Central), after obtaining comments of Shri A. C. Kher, by an order, dated March 20, 1967, transferred the case to the Court of Shri V. N. Chaturvedi, Sub-Divisional Magistrate (Headquarters). No notice of the transfer application was given and reasons for withdrawing the case from the file of Shri Kher were not recorded .The order read as under :- "20th March 1967. Applicant present. Heard and gone through the comments and record. Case be transferred to the Court of Shri V. N. Chaturvedi S. D. M. (HQ). He is directed to appear before that Court on 23rd March 1967."

(3) Shri Chaturvei after the case was made over to him, heard arguments, on March 27. l967. and fixed March 31. 1967, for judgment. On that date, the judgment could not be pronounced as Madan Lal, who had been one of the prosecution witnesses. filed a revision petition against the order of the Additional District Magistrate by which the case was transferred to the Court of Shri Chaturvedi The revision petition was heard by Shri M. I. Jain, Additional Sessions Judge, Delhi, and was dismissed on May 5, 1967. Madan Lal then moved the High Court on the revisional side.

(4) On behalf of the petitioner, it was urged by his learned counsel, Shri D. P. Bhandari, that the transfer order passed by Shri Rajinder Jain was altogether unjustified .In this connection, it was stated that the application of Sardar Singh for transfer of the case did not contain full particulars and was rto supported by any affidavit. It was urged that the order of the additional District Magistrate was had in law as it was passed without notice and did not give reasons, as required by subsection (5) of section 528 of the Code of Criminal Procedure.

(5) In the transfer application of Sardar Singh, it was alleged that Shri A. C. Kher had asked him to compromise the case after paying Rs. 10.000.00 to the complainant. The other allegations were that Shri Kher had not accepted the medical certificate of his doctor and had remarked, prior to January 31, 1967, that if the case was not settled with the complainant, deterrent sentence would be awarded.

(6) In his comments, Shri Kher denied to have made the remark attributed to him or to have asked Sardar Singh to compromise the case with the complainant or to pay any amount to him. Regarding getting Sardar Singh examined from the police surgeon, it was mentioned that as the certificate was of a doctor who had been issuing certificates in a large number of cases, he thought it appropriate to get that person examined in the police hospital.

(7) Though section 528 of the Code of Criminal Procedure does not in terms provide for giving of a notice, yet there can be no doubt that ordinarily no order should be made on the application of one party without giving the opposite party notice of that application and an opportunity to show cause against its being granted. Para 13 of Chapter 26-A of the High Court Rules and Orders, Volume Iii, also provides as follows:-

".........notice to the opposite party is not obligatory u/s 528 but is advisable except when the application appears on the face of it to be frivolous and is summarily rejected.....................". (8) SUB-SECTION (5) of Section 528 of the Code of Criminal Procedure specifically requires that a Magistrate making an order under that section "shall record in writing his reasons for making the same." The learned Additional District Magistrate ignored this provision.

(9) Here it may also be mentioned that inspire of denial of the allegations against him by Shri Kher, the learned Additional District Magistrate did not feel the necessity of asking Sardar Singh as to when he had been asked to compromise the case with the complainant or on what date the Magistrate had remarked that either the case should be settled with the complainant or otherwise the sentence would be deterrent.

(10) Shri Bhandari cited certain cases. In Gowardhan Das Kapur v. Abbas Ali it was held that even though there was no express statutory provision making it necessary that notice be given to the other side, yet it had been repeatedly held that ordinarily such notice should be given by the District Magistrate and that his proceedings are liable to be set aside by the High Court in the absence of a notice. In Dwarka Das v. Emperor an order of transfer passed without serving a notice on the opposite party was held to be illegal In Chtoemiya v. Asrafmiya an order was objected to on the ground that it was illegal being passed without notice and without record of reasons as prescribed in section 528 15) of the Cod'' of Criminal Procedure. The view taken by Gruer, J, was that although the order was irregular but it was not wholly illegal and that the Court could interfere in revision even with a legal order where it seemed just to do so. In Sugnomal Tahilram v. Phatandas Relumal, an observation was made that for a Magistrate to transfer a case from one Court to another at his whim and caprice would be seriously to interfere with the working of the Courts and would shake the confidence of the public in those Courts.

(11) The learned counsel for Sardar Singh opposed the petition by contending that failure to give notice or to record reasons, as required by sub-section (5) of section 52d of the Code of Criminal Procedure did not vitiate proceedings and that if there was anything on the record to show as to why the order of transfer was made, then omission to record reasons may be of no consequence, Hari Ram v. Allah Baksh was referred to, in which it was held that there was no provision in the Code of Criminal Procedure which requires a Magistrate, acting u/s 528, to give notice to the opposite party and the mere fact that the District Magistrate has not done what the High Court, in certain cases, has laid down as desirable is not a sufficient reason to hold that the order is had in law. In the same case, it was further held that although an officer transferring cases from one Court to another u/s 528 ought to record his reasons for it, his omission to do so being only an irregularity is not a material ground for setting aside the order of transfer.

(12) In my opinion, the mere omission to record reasons or to give notice may not be sufficient grounds for setting aside an order of transfer unless prejudice has been caused. Each case, Therefore, has to be considered on its own facts. In the case under consideration, the application of Sardar Singh was vague in some respects, It was not specified on which date Shri Kher was alleged to have suggested that the case be compromised on payment of Rs. 10,000.00 to the complainant and that in the absence of settlement deterrent sentence would be awarded

(13) If the learned Magistrate had on the date of hearing arguments or on a previous occasion made any such remarks as were attributed to him, normally Sardar Singh would have applied for transfer of the case earlier and would not have allowed either the case to be argued or a date for pronouncement of judgment to be fixed without any objection on his part. Even no affidavit was filed in support of the allegations contained in his application for transfer of the case. There is nothing to show that the Additional District Magistrate was informed that the case was already fixed for pronouncement of judgment.

(14) Proceedings had been taken in the Court of Shri Kher from April, 1965 and it may, Therefore, have been proper to let him decide the case unless for any sufficient reasons it was transferred to some other Court. The order passed by the learned Additional District Magistrate was without notice to the opposite party and reasons for transferring the case to Shri Chaturvedi were not recorded. State had thus no opportunity of showing cause against the prayer for transfer of the case.

(15) I am also unable to agree with the contention of the learned counsel for Sardar Singh that the record shows as to why the order was made. In this connection, Shri Gurcharan Singh could only urge that not accepting a private medical practitioner''s certificate furnished by Sardar Singh could be a sufficient ground for transfer of the case. The learned trial Magistrate had not outright rejected the certificate. He granted an adjournment but got Sardar Singh medically examined from the police surgeon .

(16) After considering all the facts of the case, I have no hesitation in holding that the transfer order passed by the Additional District Magistrate has caused prejudice. It has to be regarded as irregular and to have been passed by the learned Additional District Magistrate without applying his judicial mind.

(17) Another contention raised by Shri Gurcharan Singh was that Madan Lal being a mere witness in the case had no locus standi to invoke the jurisdiction of this Court. Shailabala Devi v. Emperor, was cited in which a Full Bench of the Allahabad High Court held that the application referred to in section 435(4) of the Code of Criminal Procedure is an application by a party to the proceedings, e.g., the accused, the Crown or the complainant and that an application, therefore. filed by a third party who is a total stranger to the proceedings and has no locus standi to invoke the jurisdiction of the Court is merely one for bringing the matter to the knowledge of the Court. Even if Madan Lal is regarded as an outsider and a person not directly affected by the alleged illegality or irregularity ,the High Court has jurisdiction to entertain such an application. In the authority relied upon by the learned counsel for Sardar Singh also, it was observed that an application by third party can be treated as one for bringing the matter to the knowledge of the Court.

(18) The order of the learned Additional District Magistrate was irregular, arbitrary and passed without giving an opportunity to the opposite party to oppose the application for transfer of the case from the Court of the Magistrate who had tried it all through and after hearing arguments was to pronounce judgment. As stated above, the order can be considered to have caused prejudice It would be just and proper if the transfer application is decided after obtaining from Sardar Singh an affidavit, full particulars and after giving an opportunity to the opposite party to show cause against transfer of the case to some other Magistrate.

(19) The order of Shri Rajinder Jain, Additional District Magistrate, dated March 20, 1967, is set aside and the transfer application of Sardar Singh is sent to the District Magistrate. Delhi for being disposed of according to law. Parties have been directed to appear in the Court of the District Magistrate, Delhi, on July 17, 1967.