Ranawat, J. - (1.) THE accused Yadu-nandan has filed this petition under section 526 Cr. P. C. for the transfer of a case which is pending in the court of the Additional District Magistrate Kotah under section 420 I. P. C. on the grounds - (1) that the Magistrate permitted the prosecuting inspector and prosecution witnesses to sit on chairs on the dais, and (2) did not allow the request of the accused for postponing the case for a little while to enable the counsel of the accused to come from another court where he was arguing a case for the time being and cross-examine the prosecution witnesses, while the Magistrate allowed adjournments after adjournments at the request of the prosecution side.
(2.) THE Government advocate raised a preliminary objection that the accused should have in the first instance moved the District Magistrate for the transfer of the case under section 528 Cr. P. C. before coming to the High Court. In support of his arguments, he has referred to cases of Ram Chandra v Sunder, A. I. R. 1925 Alld. , 640. B. L. R. 6 Bombay, 480 and A. I. R. 1923 Lahore, 685. . L. R. , 480, has been overruled by a Full Bench decision of the Bombay High Court in A. I R. 1930 Bom. , 480, wherein Marten C. J. has observed "as regards the mofusil courts, it was laid down in in re Fenseca (. L. R. 480) that ordinarily the High Court does not transfer a case pending before a Magistrate unless the party applying for transfer has moved the District Magistrate before coming to the High Court. That was a case in 1904. But the present subsection (8), S. 526, has been incorporated by the legislature since that date, and incidentally it makes it imperative on the Magistrate to grant an adjournment if either complainant or the accused signifies his intention of applying to the High Court for a transfer. . . . . . although it may be that in many cases it would be a convenient course to go first to the Chief Presidency Magistrate, yet, on the other hand, if an accused claims the right to go direct to the High Court, we do not see how his right as a matter of law can be excluded under the Code as in the present circumstances. " The decision in 1923 Lahore, 685 (1) is based on . L. R. , 480, which has been overruled. AIR 1925 Alld. , 640, lays down the rule that the High Court will not ordinarily entertain an application for a relief which could equally be granted by a subordinate court until recourse has first been had to that Court. Reliance has been placed in this decision on the authority of a judgment of the late Sir George Knox in Munehsar vs. Raghubar reported in (1913) 11 A. L. J. , 741. The general rule laid down in AIR 1925 Alld. , 640, might have been good law before the amendment of section 526 Cr. P. C. , but since the legislature has now made it mandatory by sub-clause (8) of section 526 Cr. P. C. for a court to adjourn the case to afford sufficient opportunity for the applicant to move the High Court for transfer of the case if any party interested intimates to the the court, at any stage before the defence closes its case, its intention to move the High Court for transfer. The old decisions which are based on the ordinary principles of jurisprudence cannot hold good. In applying for a transfer to a District Magistrate under section 528 Cr. P. C. , a court would allow adjournments on general principles, but it is not legally binding on that court to grant an adjournment. The effect of this distinction between section 526 and 528 is that a trial or enquiry becomes without jurisdiction if continued after a party has expressed its intention to apply to the court for transfer whereas it does not become without jurisdiction in the other case where trial or enquiry is continued after a party has expressed its intention to apply for transfer to a District Magistrate. It is therefore a right given to a party, if he so chooses, to take advantage of the provisions of section 526, sub-clause (8), and he cannot be denied his right so to do, simply because he has an alternative remedy of seeking his relief in a sub-ordinate court where the same legal rights are not available to him as would be available by moving the High Court in the matter. Moreover a party may not wish to incur the delay or expense of 3 double application first to the District Magistrate and then to the High Court. The judgment in AIR 1926 Sind. 137, is also on the same lines as the decision in AIR 1930 Bombay, 480. There is no statu-tary bar for a party to move the High Court in the first instance. The preliminary objection is therefore disallowed. In his explanation the Magistrate has admitted that a chair was provided within the counter for the prosecution witnesses, and that the prosecuting inspector also managed to sit on a chair which was placed near the table of the clerk of the court. He has also given explanations for granting the several adjournments which were referred to by the accused in his petition for transfer. It may be true that the Magistrate did not mean to give any preferential treatment to the prosecution side in allowing chairs for the prosecution witnesses and the prosecuting Inspector yet such distinctions of inequality are likely to raise an apprehen-sion in the mind of a litigant that he cannot get justice. The treatment of the party should be such as not to afford any chance of suspicion in the mind of the litigants relating to the conduct of the court. Any preferential treatment given to a party by a court is likely to be interpreted that the court is prejudiced even though the court may not have any such prejudice in its mind. In the interest of justice, it would be proper to transfer this case. It is therefore ordered that the case be transferred from the court of the Additional District Magistrate, Kotah, to the court of the City Magistrate, Jaipur. . ;