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 ntoice of the transfer application was given and reasons for withdrawing the case from the file of Shri Kher were nto rccorded. 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 nto 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 dismiswsed 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 unjnstified. In this connection, it was stated that the application of Sardar Singh for transfer of the case did nto contain full particulars and was rto supported by any affidavit. It was urged that the order of the additional District Magistrate was had in lew as it was passed without ntoice and did nto 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 toher allegations were that Shri Kher had nto accepted the medical certificate of his doctor and had remarked, prior to January 31, 1967, that if the case was nto 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 nto in terms provide for giving of a ntoice, yet there can be no doubt that ordinarily no order should be made on the application of one party without giving the opposite party ntoice 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:-
'.........NtoICEto the opposite party is nto obligatory under section 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 nto 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 toherwise 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 ntoice be given to the toher side, yet it had been repeatedly held that ordinarily such ntoice 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 ntoice. In Dwarka Das v. Emperor an order of transfer passed without serving a ntoice 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 ntoice 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 nto 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 antoher 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 ntoice or to record reasons, as required by sub-section (5) of section 52d of the Code of Criminal Procedure did nto 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 recard 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 under section 528, to give ntoice to the opposite party and the mere fact that the District Magistrate has nto done what the High Court, in certain cases, has laid down as desirable is nto a sufficient reason to hold that the order is had in law. Inthe same case, it was further held that although an officer transferring cases from one Court to antoher under section 528 ought to record his reasons for it, his omission to do so being only an irregularity is nto a material ground for setting aside the order of transfer.
(12) In my opinion, the mere omission to record reasons or to give ntoice may nto be sufficient grounds for setting aside an order of transfer unless prejudice has been caused. Each case, thereforee, 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 nto specidfied 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 occassion made any such remarks as were attributed to him, normally Sardar Singh would have applied for transfer of the case earlier and would nto 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 ntohing 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, thereforee, have been proper to let him decide the case unless for any sufficient reasons it was transferred to some toher Court. The order passed by the learned Additional District Magistrate was without ntoice to the opposite party and reasons for transferring the case to Shri Chaturvedi were nto 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 nto 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 nto outright rejected the certificate. He granted an adjournment but gto Sardar Singh medically examined from the police suregon.
(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) Antoher contention raised by Shri Gurcharan Singh was that Madan Lal being a mere witness in the case had no locus standi toinvoke 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 complianant and that an application, thereforee. filed by a third party who is a ttoal stranger to the proceedings and has no locua 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 nto directly affected by the alleged illegality or irrgularity, 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 toher 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 Disrrict 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.