Choudhry, CJ

[1] This is an application under Section 526, Cr. P. Code, by one of the five accused who have been prosecuted on the complaint of the respondent Jai Datt for offences punishable under Sections 447 and 427, I. P. C., in the Court of Sri Devki Nandan, Magistrate, first class at Kasumpti for transfer of the case to any other competent Magistrate. The application is made on grounds tending to show that a fair and impartial trial cannot be had before the said Magistrate and on the further ground that the trying Magistrate is a necessary, defence witness in the case. The application has been opposed by the complainant and by he Government Advocate on behalf of the State.

[2] There was a preliminary objection taken by the learned counsel for the complainant, and it was that the application for transfer was not supported by a legal affidavit as required under the mandatory provisions of Sub-section (4) of Section 526. Section 539 of the Code lays down the Courts and persons before whom affidavits may be sworn. The affidavit in support of the present application purports to have been sworn before an Oaths Commissioner at Delhi on 27-7-1953 and before a first class Magistrate, Delhi on 28-7-1953. It is conceded that the Oaths Commissioner in question was not one of the Commissioners mentioned in Section 539.

It was contended however by the learned counsel for the petitioner that the first class Magistrate at Delhi before whom the affidavit was sworn on 28-7-1953 was a Judge, as contemplated by Section 539. Now, a Judge has been defined under Section 19, I. P. C., as every person who is officially designated as a Judge, and also every person who is empowered to give a definitive judgment in any legal proceeding. A Magistrate is not a person officially designated as a Judge, and he would be a Judge within the said section read with Section 4(2), Criminal P. C., only when he is exercising jurisdiction in a suit or other proceeding.--'Ram Chandra v. Emperor', AIR 1926 Pat 214 (A). That being so, there is no doubt that the affidavit filed in support of the present application was not a legal affidavit.

[3] The next question is as to what the effect of the aforesaid illegal affidavit is on the present application. The learned counsel for the complainant-respondent cited three cases in this connection:--'Mahim Chandra v. Amjad Ali', AIR 1931 Cal 710 (1) (B),--'Ramditta Mal v. Emperor', AIR 1939 Pesh 38 (C), and--'Nanda Lal v. Emperor', AIR 1944 Cal 283 (D).

The last case has absolutely no relevancy here since it had nothing to do with the interpretation of the provisions of Section 539 of the Code. Of the other two cases, only the first need be considered since the Peshawar case purports to follow it. It was held in the Calcutta case that where an affidavit in support of an application for transfer under Section 526 is defective as not having been sworn to before one of the persons mentioned in Section 539 of the Code, the application for transfer cannot be entertained.

It was argued by the learned counsel for the petitioner however that the mere ground that the affidavit is defective should not result in the application for transfer being thrown out, but that the petitioner should be given an opportunity of rectifying the mistake. And, in this connection, he laid emphasis on the fact that Sub-section (4) of Section 526 of the Code does not say that the application for transfer shall be accompanied by, but only that it shall be supported by, an affidavit or affirmation. There seems to be considerable force in the argument of the learned counsel for the petitioner, but it is not necessary to express any opinion on the point.

The object of an affidavit in support of an application for transfer appears obviously to be that there is prima facie evidence in support of the allegations contained in the application for transfer and, incidentally, that those allegations are not made recklessly. There may, however, be a case in which a