Posted On by &filed under High Court, Madras High Court.

Madras High Court
Kamatchi Ammal And Ors. vs Emperor on 29 January, 1929
Equivalent citations: AIR 1929 Mad 511
Author: Odgers


Odgers, J.

1. In this case 13 petitioners ask for a revision of the order of the District Magistrate of Salem, wherein he refused to transfer the case in which the 13 petitioners are accused from the file of the Sub-Divisional 1st Class Magistrate. The accused were charge-sheeted before the Stationary Sub-Magistrate of Salem and appeared on three occasions before him to answer charges of conspiracy to murder etc. The police put in a petition before the 1st Class Magistrate requesting him to take the case on his own file and thereby remove it from the file of the 2nd Class Magistrate. This was done without notice to the accused and although Section 528 (2), Criminal P.C., does not say that notice shall be given to the accused when an application for transfer that concerns him is made, the practice of this Court seems to be to hold that it is advisable in the interests of justice that such notice should be given. Several cases have been cited on the point. One is In Re: Lala Miyan Saheb [1909] 6 M.L.T. 14, where Abdur Rahim, J., points out that although the requirement is omitted, as stated, from the section the High Courts have agreed that notice should be given to the parties concerned. This originated in Alagirisamy Naidu v. Balakrishnaswami Mudaliar [1903] 26 Mad. 41, which is the ruling of a Bench but that was a very much stronger case because there the accused was discharged. The complainant petitioned the Sessions Judge to direct a retrial of which no notice was given to the accused. The order there was obviously to his prejudice. Another ‘Bench of this Court in In Re: Masha Sabjee [1910] 8 M.L.T. 222, laid down that as a general rule, notice should be given of an application to transfer, though failure to do so does not render the order illegal. It is true that the Bench in that case declined to say that the order was bad in the circumstances that are not set out in the report. The latest case seems to be a decision of Devadoss, J., In Re: Ramalinga Odayar A.I.R. 1928 Mad. 560. The learned Judge says that an opportunity should be given to the accused to show cause why the transfer should not be made. That was also an instance of a pending case as here.

2. The other ground taken by the learned Counsel for the petitioners is that they have an apprehension that they may not receive a fair trial before the 1st Class Magistrate. It appears that at one time the 1st Class Magistrate had before him a security case in which some of the friends of the accused were involved. That has since been transferred elsewhere. It is also said that the fact that the police made this ex parte application to the 1st Class Magistrate would operate in the minds of the accused to induce the belief that he would be in some way prejudiced against them. There has been some attack on the statement in the affidavit that it is a sensational or exciting case and things of that sort. They are of course perfectly ridiculous reasons to be given as grounds for transferring the case from one tribunal to another. There is no doubt that the 2nd Class Magistrate is competent to try this case. It may be a question turning on the facts of the case and on the charges involved as to whether or not this case would not be better tried by the 1st Class Magistrate. Nothing that has been said to me has persuaded me to believe that there is any reasonable ground for fear in the minds of the accused that they would not receive a fair trial before the 1st. Class Magistrate but the petition must succeed on the first ground mentioned, namely, that notice was not given to the accused persons. The order of the Sub-Division Magistrate is set aside and he will he requested to pass such order, if any, as the case may require after giving, notice, to the accused.

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