- (1.) THESE are two revision applications which share a common submission and can be conveniently disposed of together. They are both directed against an order of the District Magistrate, Sirohi dated 30. 12. 64, by which the learned District Magistrate transferred two criminal cases under sec. 3/7 of the Essential Commodities Act, 1955 pending against the petitioners from the court of the Sub-Divisional Magistrate, Abu, to the court of the Sub Divisional Magistrate, Sirohi.
(2.) IT appears that the Prosecuting Inspector filed two applications of identical nature before the learned District Magistrate invoking his power under sec. 528 of the Code of Criminal Procedure for transferring the cases. The grievance of the petitioners is that before ordering the transfer of these cases the learned District Magistrate had not heard the petitioners and, it is argued, the order of transfer passed by the learned District Magistrate was vitiated. The material portion of sec. 528 of the Code of Criminal Procedure runs as follows: - "section 528 (2) - Any Chief Presidency Magistrate or Sub-Divisional Magistrate may withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him, and may inquire into or try such case himself, or refer it for inquiry or trial to inquiry into or try the same. (3) The State Government may authorize the District Magistrate to withdraw from any Magistrate subordinate to him either such classes of cases as he thinks proper or particular classes of cases. (4) Any Magistrate may recall any cases made over by him under sec. 192, sub-sec. (2), to any other Magistrate and may inquire into or try such case himself. (5) A Magistrate making on order under this section shall record in writing his reasons for making the same. " Relying on Joginder Singh vs. Amir Singh (1) and Ahmad Chibhir vs. Chellaram Tekchand (2), which was followed in Joginder Singh's case (1) the learned counsel submits that the District Magistrate should not have ordered the transfer of cases without affording an opportunity to the petitioners to have their say in the matter. In Ahmad Chibhir vs. Chellaram Tekchand and others (2), the learned Judicial Commissioner observed that it was incumbent on a magistrate transferring a case from one court to another on the application of the Crown to hear the other party and give his reasons for passing the order of transfer. In Joginder Singh's case (1), while the learned Chief Justice, who delivered the judgment, noticed that sec. 528 of the Code of Criminal Procedure did not say in so many words that when one of the parties applied for the transfer of a case notice should be given to the other party, but according to the learned Chief Justice, it was merely common sense that such a notice should be given. He compared the provisions of sec. 528 of the Code of Criminal Procedure with those of sec. 526 of the Code of Criminal Procedure which empowered the High Court to order transfer of cases and then observed that it was only reasonable to think that the the same consideration should apply when an application is made to a District Magistrate for the transfer of a case. Where the District Magistrate has passed the order, the learned Chief Justice went on to observe, it is liable to be set aside on the ground that he made it without giving notice to the other side. Powers given to the District Magistrate have been designedly kept very wide and the Legislature has not thought fit to lay down in so many words that notice be given to the parties to the case before ordering the transfer of cases. In my view, this is on account of the reason that many a time a District Magistrate may have to transfer cases from one court to the other by way of adjustment of work in the courts sub-ordinate to him. The District Magistrate is the Head of Magistracy in the District and he has to distribute the criminal business in his District whenever necessary. Where he transfers cases on account of administrative exigencies notice to parties may not be necessary. If notice were to be necessitated even for making adjustment of work in the Magistrates courts subordinate to the District Magistrate, then perhaps the very object of having cases transferred may be transferred at times because giving of notice to various parties and hearing them would necessarily result in prolonging the life of cases and the business of transfer itself may be delayed for a considerable time. Therefore, where cases are transferred from one court to other by the District Magistrate for administrative reasons giving of a notice to the parties concerned would not, in my view, be necessary. However, when a particular case or cases are transferred on an application made by one of the parties to the case or cases then in such a contingency it will be necessary for the District Magistrate to hear the other affected party. When any party approaches the District Magistrate with the request for transfer of a case and presents a certain point of view it is but right that the other side should also have an opportunity of meeting that point of view by presenting the other side of the picture. It is a trite principle that justice should not only be done but seem to be done and if a District Magistrate were to act merely on the application of one of the parties and pass any order behind the back of the other party then such a course will militate against the principle just now referred. As in these cases the learned District Magistrate acted on the application of the prosecuting Inspector who was conducting the case for the prosecution the learned District Magistrate ought to have given notice of that application to the accused petitioners. This flaw, in my view vitiates the order that the learned District Magistrate had passed and thereby transferred the cases from the court of the Sub-Divisional Magistrate, Abu, to that of the Sub Divisional Magistrate at Sirohi. Consequently I hereby accept these revision applications and setting aside the orders passed by the learned District Magistrate on 30. 12. 64 order that the cases shall be sent back by the Sub Divisional Magistrate at Sirohi to the court of the Sub Divisional Magistrate, Abu, who will thereafter deal with them from the stage at which they were before the District Magistrate ordered the transfer. The applications made by the Prosecuting Inspector will, however, be deemed to be pending before the District Magistrate, Sirohi, and if the Prosecuting Inspector still wants to press them and get a fresh decision from the learned District Magistrate, then the latter shall dispose them of after notice to the petitioners. .;