1. This is a revision petition filed by the accused in Criminal Case No. 228 of 1951 for the cancellation of the. order of the Additional District Magistrate, Manipur, transferring the case to his own file from the file of the Trying Magistrate (Sri Birahari Singh, E. A, C. and Magistrate First Class).
2. The accused, who was formerly the Secretary of the Manipur Drivers Union Co-operative Bank is being prosecuted under Section 409 of the Indian Penal Code for an alleged criminal breach of trust in respect of Rs. 3,000/- belonging to the Bank. The prosecution was launched by the Police in 1951. The accused was once discharged under Section 253 (2), Criminal P. C., but that order was set aside. The case proceeded thereafter in a leisurely way and Sri Birahari Singh, Magistrate First Class succeeded the trial Magistrate in 1955. No progress was made in his time also. On 39-2-1956, the informant applied to the A. D. M., Manipur, for the transfer of the case on the following grounds:
(1) That the case is pending for a long time and the learned E. A. C., is adjourning the case always and showing much leniency towards the accused.
(2) That the case is of public importance and the prosecution feels that there may not be proper justice in the court of Sri Birahari Singh.
(3) The petition was not supported by an affidavit and none appears to have been asked for. What is more an order was passed by the learned A. D. M. that very day on the margin of the application for sending for the record and calling of the report of the Magistrate, The record was obtained with the report of the Magistrate endorsed on the margin of the said application the same day and the learned A. D. M. without giving notice or a chance to the accused to show cause against the applicant, passed the following order in the order sheet of the original case:
29-2-1956. The case is taken to my file. Fix 30-4-1956 for P. evidence. Summon P. Ws. accordingly. Accused as before.
4. It is against this order that the accused has come up in revision. His complaint is that-
(1) the petition was not proper as it was not supported by an affidavit.
(2) it was not properly presented as the informant had no locus standi to file such petition,
(3) the accused was not given notice of the petition and no opportunity to show cause against, it, and
(4) the order of transfer was bad as the Magistrate did not record his reasons for the transfer as required by Section 528 (5), Criminal P. C.
5. There can be no doubt that it is very desirable that Courts insist on an affidavit being filed in support of the transfer petition specially when the petition contains allegations against the Magistrate, as it did in the present case, but that is so on the ground of propriety and omission to do so cannot amount to an illegality. Section 528 also does not require that such applications should be supported by an affidavit, nor is there any rule as regards the lower courts which requires that an affidavit must be filed in support of such an application. It will be thus clear that the order of transfer if otherwise supportable cannot be vitiated by this omission.
6. The second point also appears to be devoid of any force. In order to enable the Magistrate to take action under Section 528, it is not necessary that an application must be filed by a party and the Magistrate can act 'suo motu'. It follows, therefore, that the facts necessiting the transfer of the case can be brought to the notice of the Magistrate by any one. The facts in - 'King v. Harihar Singh' 50 Cri LJ 483 : AIR 1949 Pat 230 (A), referred to by the applicant were different.
There the application was for leave to withdraw the prosecution, as the dispute had been referred to an arbitrator by agreement, and it was held that the first informant has no right to withdraw a case that has been sent up by the Police. On the other hand, it was held in 'Mt. Kamni Begam v. Emperor' 39 Cr LJ 878 : AIR 1938 All 517 (B), that there is nothing in the provisions of the Criminal P. C., which would prevent any person from bringing facts to the notice of the District Magistrate which might suggest that the transfer of the case is advisable.
7. The section does not lay down nor is there any authority for a general proposition of law that a case cannot be transferred under Section 52t without the issue of notice to the accused or complainant or both, and while it has been held in a number of cases that on general principles notice should be given to the party affected, so. as to give him an opportunity of showing cause against an order of transfer, it has been held is others that the issue of a notice is not mandatory and the want of notice is not an illegality, but a mere impropriety and the question of propriety is one to be decided on the facts of each case.
In my opinion, the latter view appears to tee more correct, otherwise a provision would have been made in the section itself for giving notice.
8. In the present case the allegations were that the Magistrate was showing much leniency towards the accused and that impliedly was an allegation against the accused also. In these circumstances the accused was entitled to show that the allegation was not correct and notice to him : was therefore necessary. In the present case, the accused was present and oral notice would have been enough, but no opportunity to show cause against the application was given to him.
9. Section 528 (5), Criminal P. C., requires that the Magistrate shall record his reasons in writing but that was also not done in this case, showing that the learned Magistrate did not apply his mind to this case as he should have done.
The Calcutta, Patna, Lahore, Nagpur and Bombay High Courts are of opinion, and I agree respectfully with that opinion that a failure to record the reasons will not vitiate the proceedings unless it has prejudiced the accused, (B. B. Mitra's Criminal P. C., 11th Edition, Page 1632, para 1392).
10. It was urged that the A. D. M., transferred the case in the interest of a speedy trial, I have no doubt that, that was most probably the reason but in that case the proper course would have been to direct the Magistrate to expedite the trial. But instead of that the learned A. D. M., withdrew the case on his own file and in doing so showed undue hury inasmuch as every-thing was done on 29-2-1956.
He also did not give the accused though present an opportunity to show cause against the application even though the allegations in the application reflected on him also as already seen, and failed to record reasons for the order. All this is bound to make any accused apprehend and apprehend reasonably, that he might not get a fair deal in the new court, It can be hardly , doubted that putting the accused in this position would be to his prejudice. Thus the order of the learned A. D. M. must be set aside.
11. But even treating that these omissions were mere irregularities which did not make the order illegal, this Court can interfere in revision even with a legal order where it appears necessary in the interest of justice to do so - 'Chotemiya v. Asrafmiya AIR 1936 Nag 181 (C). In the circumstances stated above I do not think that it would be proper to let the transfer order stand.
12. I therefore, set aside the order of the learned A. D. M., transferring the case to his own file. Since the trial Magistrate Sri Birahari Singh has already been transferred, I direct that the ease shall be tried by a competent Magistrate to be selected for the purpose by the District Magistrate, Manipur. I, further, direct that in view of the delay that has already taken place, the Magistrate to whom this case will be now assigned will proceed to try it with all despatch.