BHARGAVA, J. - (1.) THIS is an application for transfer of criminal case No. 118 of 1958 pending in the court of the City Magistrate, Jaipur.
(2.) THE Case under sec. 341 of the Indian Penal Code was instituted on a private complaint by the opposite party Shri Birdhilal Sethi against the petitioner before this Court and two other accused persons namely Someswarsingh Solanki and Vijaysingh Soraya. The petitioner has urged several grounds which according to him have caused an apprehension in hi$ mind that he will not have a fair and impartial trial in the court of Shri Jagroop Sahai Mathur, City Magistrate, Jaipur. It is urged that the present case was tran?-ferred to his court on 4th July, 1958 and the complainant's evidence concluded on 12th January, 1960. During this period the City Magistrate gave sufficient indulgence to the complainant in granting him time to produce his evidence and adjourned the case a number of times. On the contrary he was very strict in the matter of granting adjournments to the accused for producing his defence evidence. It is also urged that the learned City Magistrate did not exempt Vijaysingh accused from his personal attendance in the Court and forfeited his bonds for his non-appearance on one date of hearing. Another objection raised is that the learned City Magistrate disallowed some important questions being put to the complainant during his cross-examination. Though an application was also submitted in this behalf by the accused yet the court rejected the application on the ground that the answers to those questions had already come in the statement of the complainant which was not correct. It is further urged that Shri Jagroop Sahai Mathur and the complainant both belong to Kotah and the complainant who is the General Manager of the Bank of Rajasthan has got sufficient influence over him and that is why he apprehends that he will not receive justice at his hands. An explanation was called from the learned City Magistrate in regard to these allegations. He has denied all these allegations and has said that the complainant left Kotah in 1945 and he had no association or any familiarity with him. In respect of other objections it has been stated in the explanation that no special indulgence was granted to the complainant and the case was adjourned due to either the absence of the accused or the absence of the court from the head quarters. I am satisfied with the explanation submitted by the learned City Magistrate. It may be that the order in refusing the questions or not exempting Vijay Singh from his personal attendance may not be quite justified, but it does not mean that the City Magistrate is in any way prejudiced against the accused or these orders are likely to cause any reasonable apprehension in the mind of the accused that he will not receive justice in that court. These objections therefore, do not deserve any consideration. However, one serious objection which has arisen after the transfer application was moved in this Court and which has been very much stressed before me, is that the learned City Magistrate took proceedings in the case even though it was intimated to him that a transfer application had already been submitted in the High Court. It is necessary here to mention as to how the case proceeded after 12th January, 1960. On 12th January, 1960, the case was adjourned for the examination of the accused. On 2nd February, 1960, statements of the accused were recorded and the case was then adjourned to 20th February, 1960 for defence evidence. The accused had summoned two witnesses and they did not turn up on this date. The accused also wanted to produce some more witnesses but they too were not present in the court. It appears from the order of the learned City Magistrate that he waited for about half an hour but still neither did the accused appear before him nor produced their witnesses. So the learned Magistrate directed them to be present in the court. On this the accused intimated the court that he intends applying for transfer of the case. The case was, therefore, adjourned to 8th March, 1960. By then a transfer application-had been submitted to the Additional District Magistrate, Jaipur. The case was therefore, adjourned to 15th April, 1960. On this date the file was not received from the court of the Additional District Magistrate and the case was adjourned to 2nd May, 1960. In the meantime on 3rd April, 1960 the transfer application was rejected by the Additional District Magistrate. On 2nd May, 1960 the file was received and the accused were directed to produce their evidence on 24th May, 1960. On this date the case was adjourned as the City Magistrate had to go out in connection with some other work. Counsel for the parties also prayed for an adjournment. The case was postponed to 6th July, 1960. No proceedings took place on this date also as the City Magistrate was informed that a transfer application had been filed in the court of the Sessions Judge, Jaipur City. The case was then adjourned to 26th July, 1960. The transfer application was rejected by the learned Sessions Judge on 6th August, 1960. On nth August, 1960 the file was received back but the accused again intimated that they had moved a transfer application in the High Court. So the case was again adjourned to 27th August, 1960 to enable the accused to bring an order from the High Court. Till 27th August, 1960 no orders for staying the proceedings. were received by the the City Magistrate and he further adjourned the case to 12th September, 1960 and directed the accused to obtain a stay order by that date. On 12th September, 1960 again as no orders for the stay of proceedings were received by the City Magistrate he directed the accused to produce their defence evidence on 27th September, 1960. The accused on 13th September, 1960 requested the court to give them further time for obtaining stay orders, but the learned City Magistrate rejected the application. On 27th September, 1960 an application on behalf of the accused was submitted before the City Magistrate that the transfer application moved in the High Court had come for admission before an Hon'ble Judge of this Court but it was adjourned to 10th October, 1960, after it had been partly heard. It was therefore, prayed that he may be allowed to produce his defence witnesses after the disposal of the transfer application by the High Court. The learned City Magistrate did not accede to this request and closed the defence evidence as no orders from the High Court for staying the proceedings had been received. It is alleged on behalf of the petitioner that it was after a great hesitation and reluctance that the learned City Magistrate adjourned the case to 12th October, 1960 for argument. The contention of the learned counsel for the petitioner is that the orders passed by the learned City Magistrate on 12th and 27th September, 1960 in taking proceedings in the case after it was known to him that a transfer application had been moved in the High Court were quite unjustified and have confirmed his apprehension that he will not receive justice in that court. Learned counsel urges that the provisions of sec. 526 (8) of the Code of Criminal Procedure are mandatory and the learned City Magistrate was bound to adjourn the case and give the petitioner sufficient time to enable him to obtain an order from the High Court and till then to stay all proceedings in his court. This by itself according to the learned counsel is a sufficient ground for the transfer of the case from the court of the learned City Magistrate. In support of his contention learned counsel has referred to Walidad Khan Vs. Emperor (1), Takaya Ram Vs. Emperor (2), Baliram Kashinath Vs. Mst. Marubai (3), Haji Baqridi Vs. King-Emperor (4) and Mahmood Hussain Vs. Emperor (5 ). On the other hand learned Deputy Government Advocate urges that in this case the learned City Magistrate had complied with the provisions of sec. 526 (8) of the Code inasmuch as he adjourned the case on nth August, 1960 and then again on 27th August, 1960 when it was intimated to him that a transfer application was to be moved in the High Court. If the accused did not avail of the opportunity allowed to him by the learned City Magistrate he was not bound to go on adjourning the case indefinitely. The requirement of law that the accused should be given a reasonable time to move the transfer application and sufficient time to obtain an order thereon was satisfied in this case. The law does not require that if the accused is not diligent enough in pursuing his transfer application and obtaining stay orders on it the court should go on adjourning the case from time to time. In the present case one month's time was allowed to the accused to obtain an order from the High Court but still he did not obtain such order. It is further urged that the learned City Magistrate was not deprived of his jurisdiction merely on the ground that the transfer application was pending in the High Court and as such the orders passed by him on 12th September, 1960 and 27th September, 1960 cannot be said to be illegal in any way. In this connection he has relied upon the decision in Sewa Singh Vs. The State (6 ). It is also urged that even if the learned City Magistrate was not justified in taking proceedings in his court after it was known that a transfer application had been moved still this will not be a sufficient ground for the transfer of the case. The action of the learned Magistrate was quite bona fide and in his anxiety to dispose of the case he passed the orders in question and he cannot be said to have acted wrongly specially when the case was being adjourned from time to time from 20th Feb. ,1960. The question therefore, is whether the learned City Magistrate has acted in contravention of the provisions of sec. 526 (8) of the Code of Criminal Procedure in continuing the proceedings in his court on 12th and 27th September, 1960 and whether that affords sufficient ground for the transfer of the case from this court. Sub-sec. (8) runs as follows: - "if in any inquiry under Chapter VIII or Chapter XVIII or in any trial, any party interested intimates to the Court at any stage before the defence closes its case that he intends to make an application under this section or under sec. 528, the Court shall, upon his executing, if so required, a bond without sureties, of an amo unt not exceeding two hundred rupees, that he will make such application within a reasonable time to be fixed by the Court, adjourn the case for such a period as will afford sufficient time for the application to be made and an order to be obtained thereon" When it is notified to the court at any stage before the defence closes that the accused intends to move a transfer application the court is bound to adjourn the case to enable him to move such applicaton. If the court acts otherwise and does not adjourn the case and continues proceedings in his court it will be acting in violation of the provisions of this subsection. But having complied with the requirement of this provision and allowed reasonable and sufficient time to the accused to move a transfer application and obtain orders on it, can it be said to have acted illegally if it refused to grant further adjournment? In Walidad Khan's case (1) the Magistrate had refused to adjourn the case on notification of the intention of the accused to make a transfer application. It was therefore, held that: - "the disobedience on the part of the Magistrate of a statutory mandate is sufficient to entitle the applicant to obtain a transfer of the case. '' In Takayaram's case, (2) the Magistrate examined some prosecution witnesses without any knowledge of the transfer application already moved on behalf of the accused. After having known that transfer application had been moved he stayed further proceedings in his court till order of the High Court was received. But at the same time he cancelled the bail bond of the accused holding that there was a prima facie case against him. It was held that it was not a correct or consistent attitude on the part of the learned Magistrate. Once having correctly expressed his opinion that he refrained from further proceedings in view of the application made to the High Court he ought to have stayed the proceedings completely for the time being and certainly he ought not to have taken the serious and drastic step of cancelling the bail bonds of the accused and that this proceeding was likely to produce a reasonable apprehension in the mind of the accused that he would not have a fair and impartial trial before the court, and this was therefore a fit case for transfer". It was because of the inconsistent orders passed by the Magistrate that the case was transfereed. In Baliram Kashinath's case, (3) again the Magistrate had refused to adjourn the case even though it was intimated to him that the accused wanted to move the High Court for transferring the case from his court. This was again a case where the provisions of sec. 526 (8) were violated. In Haji Baqridi's case, (4) also it was held that "when an accused person presents an application under sec. 526 Cl. (8) Criminal Procedure Code, it is the duty of the Court to stay all judicial proceedings, that is, that the Court should not go on hearing the case which was before it; but it is not right to say that as an effect of the application the jurisdiction of the court ceases and that the court cannot pass any emergent order which the law authorizes it to pass. " These are cases where the Magistrate disregarded the imperative provisions of sec. 526 (8) of the Code of Criminal Procedure. In Mahmood Hussain's case (5) there are undoubtedly some observations which support the contention of the learned counsel and they are to this effect: "in this connection I may go back to my earlier observation that this is not a case of a first application under sec. 526, Criminal P. C. as I am inclined to the opinion that if it were no order of stay would be necessary at all. I think that it is arguable that the statute in such a case itself stays the proceedings until an order is obtained from the High Court. Sub-section (8) to sec. 526 enjoins two things upon the Magistrate; first that he shall fix a 'reasonable' time in which the party is to make an application, and secondly that he shall adjourn the hearing for a time 'sufficient' not only for the application to be made but also for an order to be obtained on it. I find it difficult to construe 'reasonable' and 'sufficient' as merely synonymous. It seems to me probable that the correct view is that the Magistrate having once adjourned under this provision should continue to adjourn either until the date for making the application has passed and no application has been made, or, if an application has been made, until an order has been obtained upon it. He cannot constitute himself a judge of how long it ought to take the High Court to pass orders after having been moved. No doubt he may fix a date soon after the expiry of the period fixed for making the application in order to ascertain whether an application has been made. If he finds that it has been made; he would, on this view, be bound to go on adjourning the case until he received such orders as permitted him to continue. But these remarks are not strictly relevant to the question before us, which is not one of a first application. "
(3.) AS observed by the learned Judge himself the above observations were not directly relevant to the question in that case as that was not a case of first application. But the above observations do show that having once adjourned the case under this provision the court is bound to adjourn it either until the date for making the application is passed and no application has been made or if any application has been made until the order has been obtained on it. It is not clear from this sub-section whether sufficient time is allowed for obtaining orders on the transfer application itself or for obtaining orders for staying the proceedings in the subordinate court. But this is clear that the subordinate court is not deprived of its jurisdiction merely because a transfer application has been moved against it. In Sewasingh's case, (6) relied upon by the learned Deputy Government Advocate which was a case under cl. (10) it was held that: "assuming that even an interim order of stay is covered by sec. 526 (10) an order of stay cannot be effective unless it is communicated to the subordinate court. It has no means of knowing that it must refrain from proceeding with a certain case, other than the receipt of the stay order itself. The judgments delivered by the Court inspite of the stay order, which, however, had not been communicated to it before the judgment were delivered are not illegal. " In the present case the learned City Magistrate was informed by the accused that the transfer application had already been moved in the High Court. In the application submitted on 27th September, 1960 it was mentioned that the transfer application had come for admission before the High Court and after being partly heard had been adjourned to 10th October. The learned City Magistrate despite this fact being notified to him that the transfer application was pending for admission before the High Court called upon the accused to produce his defence on 27th September and then on that date ordered the defence evidence as closed. Assuming that the orders to be obtained under sec. 526 (8) is an order for stay and assuming that the orders passed by learned City Magistrate on 12th and 27th September are not illegal still it was indiscreet on his part to have passed such orders where it had come to his notice that the accused had already moved the transfer application in the High Court and it had been listed for admission on 23rd September. It would have been quite prudent on his part to have further adjourned the case at least upto 10th October and should have refrained from passing drastic order regarding the closing of the defence evidence. Without therefore dealing with the question about the legality of the order it is to be seen whether it is not sufficient for creating a genuine apprehension in the mind of the petitioner. In my opinion the undue haste shown by the learned Magistrate in closing the defence during the pendency of the transfer application is likely to create a reasonable apprehension in the mind of the accused that he will not get a fair deal in his court. I, therefore, consider it proper that this case should be transferred from the court of Shri Jagroop Sahai Mathur to some other court and I order accordingly. The case is sent back to the District Magistrate, who will either keep it on his own file or transfer it to the file of some other Magistrate subordinate to him for further proceedings according to law. .;