| Citation(s) |
|---|
| 1958 SLG 4041 = 1958 SLD 4041 = 1958 PLD 42 |
West Pakistan
Miscellaneous Application No. 91 of 1957, decided on 30th November 1957, under section 526, Criminal P. C.
Presented By: MUHAMMAD SHAFI, J
Criminal Procedure Code (V of 1898), S. 526-Transfer of case-Issue of notice to other party-Whether necessary Magistrates alleged to be under influence of Police-Case transferred. Although section 526, Criminal P. C. does not provide for the giving of a notice to the opposite party, still on general principles, an order should not ordinarily be made on the application of one party without giving the opposite party notice of the same and an opportunity of showing cause against its being granted. The issue of a notice is not mandatory and the want of notice does not amount to an illegality, but certainly it does amount to impropriety. Where some very serious allegations were made against the entire Police of the District and it was alleged that the Magis trates at the District Headquarters were under the influence of the Police, the case was transferred from the Additional District Magistrate's Court to that of the District Magistrate who was shortly to take charge of the District. S. Masoom Shah for Petitioner. Shahzaman Khan for
Respondents.. Date of hearing: 30th November 1957.
Miscellaneous Application No. 91 of 1957, decided on 30th November 1957, under section 526, Criminal P. C.
Presented By: MUHAMMAD SHAFI, J
Criminal Procedure Code (V of 1898), S. 526-Transfer of case-Issue of notice to other party-Whether necessary Magistrates alleged to be under influence of Police-Case transferred. Although section 526, Criminal P. C. does not provide for the giving of a notice to the opposite party, still on general principles, an order should not ordinarily be made on the application of one party without giving the opposite party notice of the same and an opportunity of showing cause against its being granted. The issue of a notice is not mandatory and the want of notice does not amount to an illegality, but certainly it does amount to impropriety. Where some very serious allegations were made against the entire Police of the District and it was alleged that the Magis trates at the District Headquarters were under the influence of the Police, the case was transferred from the Additional District Magistrate's Court to that of the District Magistrate who was shortly to take charge of the District. S. Masoom Shah for Petitioner. Shahzaman Khan for
Respondents.. Date of hearing: 30th November 1957.
MUHAMMAD AMIR-Applicant
VERSUS
STATE and others-Respondents
Law: Criminal Procedure Code (V of 1898)
Section: 526
JUDGMENT MUHAMMAD SHAFI, J.-Fifteen persons were being prose cuted in one case and 5 in the other under different sections the P. P. C. in the Court of Resident Magistrate, Talagong. On the 31st of August 1957, Sub-Inspector Muhammad Akbar Khan, who is supposed to be the victim of the assault in both the cases, made an application to the Superintendent of Police, Campbellpur, that the relevant authorities should be moved for the transfer of the case from the above Court for trial at Campbellpur. He gave several reasons for doing so. The Superintendent of Police forwarded the application to the District Magistrate, Campbellpur and wrote at the same time rather indiscreetly that he would speak to him. The District Magistrate, Campbellpur, by his order, dated the 4th of Septem ber 1957, withdrew both the cases from the Court of the Resident Magistrate, Talagong, and made them over to the Court of Additional District Magistrate, Campbellpur. Muhammad Amir, who is an accused person in both the cases, has made two applications under section 526 of the Criminal P. C. for their transfer from the Court of the Additional District Magistrate, Campbellpur, to some other District. P L D 1958 (W It is argued that the cases may be transferred to District Mianwali from where Lava, where the occurrence has taken place, is only forty miles while Campbellpur is at a distance of eighty miles. It is further submitted that the Magistrates at Campbellpur are under the influence of the police, and therefore, the accused apprehend that they would not have a fair trial at their hands. I have heard learned counsel for the petitioner as well as the Sub-Inspector concerned, and Mr. Shah Zaman, who appeared on behalf of the Additional Advocate-General. I think the order of the learned District Magistrate suffers from an inherent defect, inasmuch as he did not give notice to the accused person before he transferred the case from the Court of the Resident Magistrate to the Additional District Magis trate, Campbellpur. It is true that section 526 of the Criminal P. C. does not provide for the giving of a notice to the opposite party, still on general principles; an order…