Abdul Rahim, J.
1. The District Magistrate before withdrawing the case from file of the Taluk Magistrate of Dharampuri ought to have given notice to the accused and heard his objections if he had any to urge to the withdrawal. Section 528, Criminal Procedure Code, it is true, does not say that notice must be given to any of the parties interested and therefore the absence of notice would not make the order illegal, but all the High Courts have agreed that notice should, in the interests of justice and fairness be given to the parties concerned. See Imperatrix, v. Sadashiv 22 B.k 549, Teacotta Shekdar v. Ameer Hajee Hafiz Paikar 8 C.m 393; Ajodheya Lal v. Paryag Narain' 7 C.W.X. 114 Umrao Singh v. Fakir Chand 3 A.k 749 and Criminal R.C. No. 426 of 1900 and Criminal Miscellaneous Petition No. 137 of 1903, reported in Weir's Criminal Rulings 4th Edition Volume II, pages 691 and 692. In the present instance the District Magistrate apparently acted on an office note sent to him by the District Forest Officer who is responsible for the prosecution and in his order of transfer the Magistrate says that questions of some difficulty might arise for decision and that the Taluk Magistrate should try the case.
2. The transfer was made after all the witnesses for the prosecution have been examined, and apparently if the trial is to be held now by another Magistrate it has to be gone through de novo unless the accused chooses to have cases decided by a Magistrate who did not hear the evidence of the prosecution as it was given. Under such circumstances it was only right that the District Magistrate before making the order of withdrawal should have heard what the accused had to say against it, I can quite understand that there may be cases in which the want of notice should not be a ground for setting aside an order under Section 528, Criminal Procedure Code, but the present is obviously not such a case. I, therefore, set aside the order the District Magistrate dated the 18th November 1908 and order that the case be restored to the file of the Taluq Magistrate of Dharampuri.