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Mt. Kamni Begam and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1938All517
AppellantMt. Kamni Begam and anr.
RespondentEmperor
Excerpt:
- - it may well be that it is advisable for a district magistrate ordinarily to do so, but there is certainly no law which requires him to do so. i cannot take this as authority for a general proposition of law that no district magistrate can transfer a case without the issue of notice to the accused or complain, ant or both. the applicants can approach the district magistrate for a re-transfer if they like to do so, but i am not prepared to interfere.orderallsop, j.1. this is an application in revision against an order of the learned additional district magistrate of naini tal transferring two cases from the court of a subdivisions! magistrate to his own court. the applicants or one of them, i am told, made a complaint against one sarwat yar khan and as the result of statements made by them in the course of that case the court made a complaint under section 193, i.p.c. that they had committed perjury. sarwat yar khan also made a complaint that the applicants had been guilty of defamation. both cases proceeded in the court of the sub-divisional magistrate and then sarwat yar khan made an application to the additional district magistrate that they should both be transferred to his court. apparently the additional district magistrate.....
Judgment:
ORDER

Allsop, J.

1. This is an application in revision against an order of the learned Additional District Magistrate of Naini Tal transferring two cases from the Court of a Subdivisions! Magistrate to his own Court. The applicants or one of them, I am told, made a complaint against one Sarwat Yar Khan and as the result of statements made by them in the course of that case the Court made a complaint under Section 193, I.P.C. that they had committed perjury. Sarwat Yar Khan also made a complaint that the applicants had been guilty of defamation. Both cases proceeded in the Court of the Sub-divisional Magistrate and then Sarwat Yar Khan made an application to the Additional District Magistrate that they should both be transferred to his Court. Apparently the Additional District Magistrate asked for the explanation of the Sub-divisional Magistrate and after receiving it directed that the cases should be transferred to his Court. The main argument addressed to me is that the order of transfer was passed without any notice having been issued to the accused. It is also said that Sarwat Yar Khan had no locus standi to apply for the transfer of the case under Section 193, I.P.C. and that his application was made under the provisions of Section 526, Criminal P.C., which did not apply to a transfer pf a case by the Additional District Magistrate. The last allegation is of course true, but the Additional District Magistrate had power to transfer the case under the provisions of Section 526, Criminal P.C. and the question is whether ho, acting under that Section, committed some illegality or irregularity which would justify this Court in interfering with his order in revision.

2. I can find no provision in the Criminal Procedure Code that a District Magistrate may not transfer a case from a Subordinate Court without giving notice to the accused or the complainant or either. Learned Counsel has referred me to the case in Ramalinga Odayar v. Emperor (1928) 15 A.I.R. Mad. 560 in which a learned single Judge of the Madras High Court said that the District Magistrate before passing an order of transfer should give an opportunity to the accused to show cause why a transfer should not be made. It may well be that it is advisable for a District Magistrate ordinarily to do so, but there is certainly no law which requires him to do so. I have also been referred to the case in Jageshwar v. Emperor : AIR1929All932 . It was a case which was transferred on the application of one of the accused without notice having been issued to the complainant. The complainant went up in revision against the order of transfer and a reference was made to this Court. In the particular circumstances of that case a learned single Judge of this Court thought that the order of transfer was improper and that it should not have been made without notice to the complainant. I cannot take this as authority for a general proposition of law that no District Magistrate can transfer a case without the issue of notice to the accused or complain, ant or both.

3. In the case before me, the applicant has not put in any affidavit from which I can gather what the circumstances were in which the order of transfer was made. It has been stated that the evidence in the pending case had been closed and only the arguments remained to be heard, but the reasons for transfer are not given. There is no reason for supposing in the absence of any statement of all the relevant facts that the order of the District Magistrate was improper or hasty in any way. The argument that Sarwat Yar Khan had no locus standi to make an application for transfer appears to me to have no force. It is true that this case under Section 193 was technically between the King-Emperor and the accused and that Sarwat Yar Khan was not a party to it, but I do not find anything in the provisions of the Criminal Procedure Code which would prevent any person from bringing facts to the notice of the District Magistrate which might suggest to that Magistrate that it was advisable to transfer a case from one Court to another. The mere fact that the District Magistrate received information on an application would not debar him, I think, from making an order for transfer if it appeared to be a proper order. I am not willing to interfere with the order of the Additional District Magistrate on the information before me and I am also not inclined to delay the proceedings and send for the record in the circumstances. The applicants can approach the District Magistrate for a re-transfer if they like to do so, but I am not prepared to interfere. The application is rejected.


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