Decided on September 22,1955

Medanki Adeyya And Ors. Appellant
Dittakavi Apparao Respondents

Referred Judgements :-



Krishna Rao, J. - (1.)ALL the personal grounds against the Magistrate put forward by the petitioners in support of their application for transfer have been categorically and convincingly denied by the Magistrate and need no further consideration. The learned Advocate for the petitioners presses for the transfer on two grounds. The first is that the Magistrate posted the counter case, C. C. No. 465 of 1955 in which petitioner 1 is the complainant, for arguments to 28 -8 -1955, which was a Sunday. He refers to Rule 1 of the Criminal Rules of Practice which reads:
Sunday shall be deemed a 'dies non' and no cases shall be heard and no judicial act formally announced or done on a Sunday, save in cases of absolute urgency.

He contends that the posting of the case against the rule has given rise to an apprehension by the petitioners that the Magistrate will not deal with the case fairly. But the Magistrate has reported that the case was posted to the Sunday, with the consent of the Advocate Sri G. S. R. Anjaneyulu, who was appearing for the petitioners in both the cases.

The Magistrate seems to have thought that as the judgments in both the cases had to be delivered at the same time, and in order to comply with the High Court's directions that judgments should be delivered within 3 days after the close of the case he ought to hear arguments at least in one of the two cases on one of the two holidays on 28 -8 -1955 and 29 -8 -1955. He posted C. C. No. 461/55 for arguments to 30 -8 -1955.

No doubt, he has technically contravened Rule (1) of the Criminal Rules of Practice by posting C. C. No. 465/55 for arguments on a Sunday. But this was with the consent of the petitioners' Advocate, and I do not consider that the petitioners had any cause for suspecting impartiality of the Magistrate on this ground.

(2.)THE other ground urged is that the Magistrate refused an adjournment, when petitioner 1 on behalf of all the petitioners presented an application to him under Section 526 (8), Criminal P.C. on 28 -8 -1955. The reason given by the Magistrate is that he followed an observation in - Rex v. : AIR1950All312 at p. 314 (A) according to which "the words 'at any stage before the defence closes its case', do not mean 'at any stage before the arguments begin' but have reference to the stage when the defence evidence has been concluded."
He says that he did not give an adjournment as the defence evidence had been closed in both the cases and they were posted only for arguments. The learned Counsel for the petitioners urges that the refusal of the Magistrate to adjourn the case is by itself a sufficient ground for transfer. For this position, he relies on - Bali -ram v. Mt. Marubai : AIR 1936 Nag 233 (B) but that was a case where the Magistrate was found to have deliberately refused to adjourn the proceedings.

It was held by Grille J. that the Magistrate by his precipitate action had given the accused persons reasonable ground for apprehension that he would not be unprejudiced in the conduct of the trial. Reliance is also placed on - 'Walidad Khan v. Emperor' . But there the reason for transfer was that the High Court wanted to enforce obedience to the provisions of Section 526(8), Criminal P.C.

Such a course is no longer necessary under the conditions in this State. No doubt, as held in - Public Prosecutor v. Chockalinga Ambalam : AIR 1929 Mad 201 (D) a case is not closed for the purpose of Section 526(8), Criminal P.C. until the arguments are completed. The Magistrate was wrong in refusing an adjournment following the observation in : AIR1950All312 at p. 314 (A). But the Magistrate's attention was apparently not drawn to and he appears to have refused adjournment 'bona fide' under the impression that the application was not maintainable.

In these circumstances, the refusal of the application for adjournment is also not a valid ground for transfer of the case. Cr. M. P No 589/55 is therefore dismissed.

Cr. M.P. No. 591 of 1955.

The petitioner in this application is the same as petitioner 1 in Cr. M. P. No. 589 of 1955 and the grounds for transfer are the same. For the reasons given in Cr. M, P. No. 589/55, this petition is also dismissed.


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