LODHA, J. - (1.) THE complainant Shri K. D. Ghauri I. P. S. has filed this appeal from the order of acquittal of the accused respondent Nanakram K. Israni by the Additional Munsiff Magistrate, First Class, Aimer City dated 27th April, 1968, under sec. 500 and 501 I. P. C.
(2.) BEFORE arguing the case on merits, learned counsel for the complainant appellant submitted that an illegality had been committed by the trial court inasmuch as it wrongly rejected the complainant's application under sec. 526 (8) Cr. P. C. dated 24th April, 1968, by which the complainant requested the court to adjourn the case to enable him to move an application before the High Court for transfer of the case from it. It is submitted that by doing so, the learned Magistrate had committed breach of a mandatory provision of law and consequently all the proceedings conducted by the Magistrate thereafter including the judgment were null and void The learned counsel has, therefore, prayed that the order of acquittal be set aside and the case be sent back before a Magistrate other than Shri L. N. Shah who had dismissed the application and decided this case. In order to determine the point canvassed before us, it is necessary to give a few relevant dates. The complaint was filed in the court of the Additional Mun-siff Magistrate Shri Goswami on 28-7-65. After all the evidence of the complainant had been recorded, he moved an application before Shri Goswami on 26-6 67 to grant him time to move an application for transfer. Time was granted, but the application filed by the complainant in the Sessions Court for transfer of the case was rejected. Thereafter Mr. Goswami was transferred and Shri C. L. Khanna came in his place. On 9-12-67, the accused moved an application for adjourning the case to enable him to move the Sessions Court for transfer of the case. On 23rd January, 1968, the Sessions Judge Ajmer directed that the case be transferred to the court of Shri L. N. Shah, Additional Munsiff-Magistrate, Ajmer City (East) The grievance of the complainant is that before passing the order dated 23*1-68, the Sessions Judge had not given any notice of the application for transfer to the complainant. When the file of the case came up before Shri Shah, he called the complainant's counsel od 27th February, 1968, on which date the case was adjourned to 6th March, 1968. On the last-mentioned date, the complainant's counsel Mr. Amrit Kumar moved an application or granting him time to enable him to contact his client and he further stated in his application that previously on one occasion Shri Shah had observed that it was futile for the prosecution to pursue this case as there were no chances of conviction. The learned Magistrate adjourned the case to 21st March, 1968, and on this date the complainant made an application for adjourning the case on the ground that he wanted to move an application for transfer. The case was adjourned to 15th April, 1968. The complainant moved the Sessions Court for transfer of the case, but his application was rejected on 23rd April, 1968, and, thereafter, as stated above, the complainant made a second application on 24th April, 1968, to grant him time once again to move the High Court for transfer. It is urged that under sec. 526 (8) Cr. P. C. it was obligatory for the learned Magistrate to have granted time to the complainant to move the High Court for transfer of the case. It is submitted that instead of doing that, the learned Magistrate proceeded with the case in all haste and decided it only two days thereafter on 27th April 1968. Learned counsel has argued in this connection that the complainants case was not covered by the proviso to sec. 526 (8) Cr P. C, and that it was necessary for the complainant to have moved the Sessions Court in the first instance and therefore the second application for moving the High Court should have also been allowed. In support of his contention, learned counsel has relied upon State of W. B. vs. S. Narayan Rao (l), Bhagwat vs. Emperor 2), Luttur vs. Emperor (3), Devi Chand vs. Emperor (4), Pandurang vs. Emperor{5) and Pratinga vs. The State (6 ). On the other hand, it has been argued by the learned counsel for the respondent accused that non-compliance with the provisions of sec. 526 (8) Cr. P. C. is only an irregularity curable under sec. 537 Cr. P. C. and that it does not vitiate the subsequent proceedings. In support of his contention, he relied upon Neamat Sha vs. Hanuman Buksha (7) and Mahmood Hussain vs. Emperor (8 ). He has further argued that in any view of the matter, the present is not a fit case where a retrial should be ordered. It has been argued in this connection that the only material proceedings which had taken place after 24th April, 1968, were hearing of arguments and pronouncement of judgment. Before we analyse the authorities relied upon by the learned counsel for the parties, we wish to point out that all the witnesses produced by the complainant had been examined by Mr, Goswami. Mr. Khanna recorded a part of the cross-examination of D. W. 2 the accused Mr Israni and Mr. L. N. Shah completed the statement of D. W. 2 and heard arguments and decided the case. It may be further noted that the statement of D. W. 2 Mr. Israni runs into several pages. His statement was commenced on 28th March, 1967. The cross-examination was started on 2pth March, 1967, and it was continued on 6-4-67, 26-4-67, 4-9-67 and 29-11-67 and was completed on 24th April, 1968. The only portion of the statement recorded by Mr. Shah is at page 57 of the Paper Book and constitutes, in our opinion, very small part of the whole statement. We have stated this to point out that whatever prejudice said to have been causcd to the complainant on account of the learned Magistrate having not granted him time to move the High Court for transfer is confined to hearing of arguments and deciding the case. It is not the complainant's grievance that any question put by him to the witness D. W. Israni was disallowed by the learned Magistrate on account of the alleged prejudice. We now proceed to consider the rationale of the various decisions relied upon by the learned counsel for the parties. In State of W. B. vs. S. Narayan Rao (supra), it was observed that the expression "shall" used in sub-sec. (8) to sec. 526 Cr. P. G. as amended by the amendment Acts 21 of 1932 and 26 of 1955 is mandatory and the further use of the expression in the proviso thereunder merely pinpoints that it is so subject only to the conditions mentioned in the said sub-sec. (8) and the proviso thereunder as also to the provisions of sec. 2 of the said section. In this view of the matter, it was further held that the decision in Neemat Sha vs. Hanuman Buksha (supra) which was made in the context of sec. 526 (8) Cr. P. C. as it stood amended in 1923 was no longer good law in view of the material provisions which had since been added to the said section under the amendment Act 21 of 1932 and amendment Act 26 of 1955. In that case, the accused had been acquitted under sec. 251 A (l 1) Cr. P. C. of charges under secs. 417 and 419 I. P. C. It was urged on behalf of the accused that in any event, having regard to the considerable efflux of time that had taken place and also in view of the not very commendable conduct on the part of the prosecution in delaying matters, justice demanded that there should be no interference with the order which was one of acquittal. The learned Judges, however, expressed their disagreement with this contention and while holding that the prose-cution had undoubtedly delayed matters by pressing for adjournments after adjournments, they found it difficult to maintain the order on a technical ground and not on merits, and that too when it was not proper for the trying Magistrate to have passed it. It was observed that in the facts and circumstances of the case and in view of the stage when the said order of acquittal was passed it was expedient in the interests of justice that the impugned order of acquittal should be set aside. In Bhagwat vs. Emperor (supra) it was held that the provisions of sec. 526 (8) are mandatory and if they are infringed, the whole trial becomes illegal. It was further observed that if subsequent to an application under sec. 526,8), the Magistrate without granting an adjournment proceeds with the case, the trial becomes illegal and not merely irregular and is curable under sec. 537 Cr. P. C. In Lutur vs. Emperor (supra), the learned Judge of the Allahabad High Court held that under sec. 526 (8) Cr. P. C. where an accused notifies to the Court before which the case is pending his intention to make an application under this section, the Court is bound to adjourn the case for such a period as will afford a reasonable time for an application to be made to the High Court and an order obtained thereon. It was further held that the progress of the case after rejecting the application was illegal and not a mere irregularity curable under sec. 537 Cr. P. C. Again, in Devi Chand vs. Emperor (supra) it was observed that the refusal of a Magistrate to give a reasonable opportunity to an accused person to apply lor a transfer of the case is an illegality which vitiates the whole proceeding. In Pandurang vs. Emperor (supra) it was held that the provisions of sec. 526 (8) Cr. P. C. as they stand are absolutely imperative in terms and the Magistrate is bound to adjourn the case on the application for transfer by the accused till such period as would afford a reasonable time for the application for transfer to be made. It was further held that where the Magistrate without granting the adjournment proceeds with the case, the trial becomes illegal and not merely irregular. At this stage we may point out the decision of Neemat Sha vs. Hanuman Buksha (AIR 1931 Cal. 626, supra) relied upon by learned counsel for the accused has been analysed in the later case of the Calcutta High Court in State of W. B. vs. Narayan Rao (All R. 1968 Cal. 512 supra) which we have referred to above, and as observed by the learned Judge in the latter case, it is distinguishable on account of the subsequent amendments made in the section. The other case relied upon by learned counsel for the accused, namely, Mahmood Hussin vs. Emperor (supra) is in our opinion not in point at all. Thus on an analysis of the authorities referred to above, we are of the opinion that the provisions of sec. 526 (8) are of a mandatory nature and ought to have been respected by the learned Magistrate Even while holding so, the pertinent question in the present case is whether we should now send the case back to the trial court for a fresh decision. The complaint, as we have stated above, was instituted as far back as 28th July, 1965. Seven years have gone by since then. We have also recorded in the earlier part of our judgment that the only prejudice that may be said to have been likely caused to the complainant is in the matter of hearing arguments and deciding the case. But so far as the preparation of the record of the case is concerned, no prejudice has been caused to him. The complainant is free to address all the arguments before us which he could have addressed before the trial court, and it is open to us to examine the whole record here and decide the case not only on questions of law but on all questions of fact also. In this view of the matter, we are not inclined to accept the technical objection raised by the learned counsel. Consequently while holding that the Magistrate was certainly wrong in not granting the complainant's application dated 24th April, 1968, for adjourning the case to emable him to move the High Court for transfer, we, at the same time, do not feel inclined to quash the judgment on that ground alone and for the reasons which we have stated above, we over-rule the objection for sending the case back to the trial court. Let the case now be listed for arguments on merits on 8th May, 1972. . ;