1. This is an application by accused 1, 4, 5, 6, and 7 against the order of the Sub-divisional Magistrate, Sirsi Division, Kanara, confirmed in appeal by the District Magistrate, forfeiting the recognizance bonds of the petitioners.
2. The relevant facts are as follows: A complaint was filed against the petitioners and others Under Section 504, I.P.C., at Honavar by the toddy licensee of that place in the Court of the Town Magistrate of Honavar on 18th July 1930. Process was issued. They were arrested and brought before the Magistrate and were released on bail. On 22nd July the Sub-divisional Magistrate, Sirsi Division, transferred the case to his own file, purporting apparently to follow the general directions of the District Magistrate in regard to a certain class of cases. On 25th July, although the accused were released on bail, they applied Under Section 526, Criminal P.C., for an adjournment on the ground that they wished to move the High Court for a transfer. The learned Magistrate rejected the application and moved his camp on 26th July to Bhatkal, where the accused followed. The Honavar sureties declined to continue, and the accused were allowed to remain out on bail on their own personal bonds. The complainant however was net present at Bhatkal. On 28th July the Magistrate moved his camp from Bhatkal to the village named Sampkhed, which appears from the map to be about forty miles distant from Bhatkal, and on 30th July he moved his camp to Siddapur. On this day the accused were present. But the complainant was absent, nor apparently were any of the witnesses present. On 31st July the accused complained of a serious inconvenience by each change of camps, particularly in the rainy season, and asked that their recognizance bonds should be cancelled and that they should be taken into custody rather then have to follow the Magistrate about on their own recognizance as they hitherto had done. That application was refused by the Magistrate. The accused then applied again Under Section 526(8) to adjourn the case on the ground that they wished to move the High Court for transfer of the case. That application was rejected, and they were ordered to re appear on 1st August. They failed to do so. In fact they actually did apply to this Court for a transfer. On their failing to appear at the camp at Siddapur, the Sub divisional Magistrate forfeited their recognizance bonds. Their appeals were rejected by the District Magistrate, and they now apply in revision.
3. Three points are taken for the petitioners: firstly, that the terms of Section 526(8) are imperative and that the Magistrate was bound to adjourn the proceedings in his Court, and all subsequent proceedings including the order to appear on 1st August, and the forfeiture of the recognizance bonds was illegal and void. Secondly, the accused had till then followed the Magistrate about and had complied with the requirements of the bonds, and they had to leave the Magistrate for the purpose of their application for transfer to this Court in Bombay. Thirdly, the Magistrate was bound in any case to grant their request to set aside their recognizance bonds and to take them into custody in a warrant case Under Section 504, I.P.C.
4. It is contended for the Crown that the mere application Under Section 526(8), Criminal P.C., does not deprive the Magistrate of his jurisdiction and that the trial or inquiry did not really commence before the Magistrate would begin to record evidence, and therefore the Magistrate had jurisdiction to order the attendances on 1st August, and in default to forfeit their recognizance bonds.
5. As to whether the enquiry or trial had commenced on 31st July or not we are clearly of opinion that under the definition of 'inquiry' Under Section 4(k), Criminal P.C., combined with the provisions of Section 252, Ch. 21, of the same Code, the inquiry of the case was not deferred till such time as the Magistrate would; begin to record evidence, but commenced, not indeed with the lodging of complaint or even with the issue of process, but with their appearance on such processes before the Magistrate to answer the charges. If so the accused were within their rights in applying under Sub-section (8), Section 526, and that right could not be delayed till the time when the Magistrate recorded the evidence. Clearly therefore the Magistrate was bound under the law to adjourn the case till such period as would afford a reasonable time for the application for transfer to be made. In the present case considering the distance between Karwar and Bombay, and the difficulty of passages in the rainy season, adjournment for a day from 31st July to 1st August was clearly inadequate. It is true that Section 526(8) is capable of abuse by the parties desirous of delaying this decision of the case, and that in practice may be too often so abused. But, as has been observed by the Madras High Court in Nathan, In re A.I.R. 1930 Mad. 187 even if such, a provision of law, however disastrous it might appear to be, as it stands is absolutely imperative in terms, and to refuse it contrary to the terms of the section is to exercise a power of trial the Court does not possess and to vitiate the whole subsequent proceedings. The language of the clause as is now framed is, if anything, wider then the clause of the previous Criminal Procedure Code. To the same effect is the decision of the Calcutta High Court in Queen Empress v. Gayitri Prosunno Ghosal  15 Cal. 455 That was also a case of transfer from the Magistrate though there the evidence had begun to be recorded. To these we may add two decisions of the High Court of Allahabad, Haji Baqridi v. Emperor, : AIR1928All268 , and Luttur v. Emperor : AIR1930All263 . Both in terms are to the same effect. In Lutturs' case it was held:
Where the Magistrate, without granting the adjournment incumbent Under Section 526(8), proceeds with the case the trial becomes illegal and not merely irregular,
In Haji Baqridi v. Emperor it was held:
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,
as for instance Under Section 117, Criminal P.C.
6. It cannot however be contended in the present case that in the absence of the complainant and his witnesses at Honavar, thirty or forty miles away, and in the absence of the other accused, the presence of the petitioners before the Magistrate on 1st August was an emergent order necessary in the interest of justice, and in fact it is difficult to see how the Magistrate could have proceeded even if the present accused had attended. Agreeing as we do with the decision quoted above, we are of opinion that the order of the Magistrate, that the accused after their application on 31st July Under Section 526(8) should attend before him on 1st August and the order of forfeiture for non appearance on the latter date, were contrary to law and void and must therefore be set aside.
7. In this view it is not necessary to consider the other grounds. There is no express allegation of harassment made in the petition and the duties of the Sub divisional Magistrate doubtless compelled him to tour as he did with the result that inconvenience was caused to the accused, as is clear from the fact that they offered the forfeiture of their recognizance bonds and preferred custody to a continuation of their having to follow the Magistrate about at such inconvenience. It is against this hardship that the criminal circulars of this Court Nos. 50 and 51 at pp. 38 and 39, are intended to guard, and from the record it appears that the case would have been earlier and better concluded in Honavar before the original Magistrate then it proved to be before the Sub-divisional Magistrate. Into this question, for the reasons stated above, it is unnecessary to enter. We content ourselves with expressing a hope that the Magistrates will remember the inconvenience to the parties and witnesses in fixing trials when they are themselves in the tour and with inviting the attention of the Magistrate to these circulars.
8. We allow the application, set aside the order of forfeiture of the Sub-divisional Magistrate, and direct that the amounts if paid should be returned to the respective petitioners.