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 Magist