D.P. Desai, J.
1. This matter has been referred to the Division Bench 'by our brother J.M. Sheth J. by an order dated 21-8-1969 observing 'the question involved whether the Court is bound to go on adjourning the case from time to time, even if the stay order is not granted, merely because the transfer application is pending and even if sufficient time is granted to make an application and to obtain an interim order thereon regarding stay of proceedings, the proceedings become null and void and order of conviction becomes illegal, is a question of great importance. 'The matter has been referred to the Division Bench in view of a decision of our brother Thakor J., in Criminal Appeal No. 362 of 1966 decided on 28-6-1968 taking the view that in such a case the conviction is vitiated.
2. The petitioners before us were original accused Nos. 1 and 2 before the learned Magistrate, 1st Class, Vijapur in Criminal case No. 1331 of 1968 and they were convicted of different offences and sentenced to various terms of imprisonment. Against that order of conviction and sentence, the petitioners filed Criminal Appeal No. 81 of 1969 in the Sessions Court at Mehsana and that appeal came to be dismissed by the learned Additional Sessions Judge on June 30, 1969. Being aggrieved by that order the petitioners have approached this Court in revision and the only ground urged on their behalf before us is that the action of the learned Magistrate in going on with the case and recording of evidence when transfer application was pending in the Sessions Court in the first instance, and thereafter in the High Court, is an action contrary to law and as a result thereof all the proceedings taken by him, after filing of these transfer applications, are vitiated. It is urged that the conviction and the order of sentence are, therefore, vitiated. The facts so far as material for the purpose of this contention are that the charge against the petitioners and the 3rd accused, who came to be acquitted, was framed on 16-10-1968. Thereafter, the case came up for hearing before the learned Magistrate on 11 -2-1969 and on that day one of the petitioners namely petitioner No. 1 Gafurbhai gave application Exhibit 16 stating that he wanted to get the case transferred to some other Court and prayed for adjournment. On this application the learned Magistrate granted time and fixed the next date as 26-2-1969. It is not in dispute that in the meanwhile on 24-2-1969 the application for transfer was given to the Sessions Court. Thereafter, on 26-2-1969, petitioner No. 2 Daudbhai gave application, Exh. 17, stating about the transfer application filed in the Sessions Court and praying for adjournment till the same is decided. On that application the learned Magistrate passed an order fixing the next date as 11-3-1969. On 11-3-1969 petitioner No. 2 Daudbhai gave application Exh. 18 stating that the transfer application in the Sessions Court was not heard and prayed for a long adjournment. On that application, the learned Magistrate passed the following order:
One month's time is granted. No stay order received. Application rejected.
Having rejected this application the learned Magistrate recorded evidence of two witnesses on that day. Then he adjourned the matter to next day i.e. 12-3-1969 and examined four more witnesses. Thereafter the matter was adjourned to 17-3-1969, but before it could reach hearing, the learned Magistrate received intimation from the Sessions Court to send record and proceedings on 15-3-1969. Thereafter the transfer application in the Sessions Court was heard and rejected on 3-4-1969. The learned Magistrate having received intimation about this order fixed the next date for trials as 21-4-1969 and on that day examined two witnesses. Then the matter was adjourned to 22-4-1969. On that day after examination of one witness, the petitioner No. 2 Daudbhai gave an application, Exh. 39 stating that he wanted to approach the High Court for transfer of this case and prayed for 15 days' time. The learned Magistrate granted this application ordering the accused to execute a bond of Rs. 150/- as per Section 526(8) of the Criminal Procedure Code. Time was granted upto 8-5-1969. Meanwhile, a transfer application was given to the High Court before 4th May, 1969 and was numbered as 130 of 1969. In that proceedings the High Court stayed further proceedings before the learned Magistrate and accordingly the proceedings were stayed. Then, on 15-5-1969, the stay was vacated by the High Court. The case was then fixed for hearing on 26-5-1969 by the learned Magistrate and three witnesses were examined on that day, statement of the accused was recorded and arguments were heard. Then on 28-5-1969, the High Court dismissed the transfer application No. 130 of 1969. On 29-5-1969 application Exh. 48 was given to the learned Magistrate requesting for time to postpone the matter in order to enable the petitioners to make a transfer application on a fresh ground. Now, after conclusion of arguments on 26-5-1969, the matter was posted for judgment to 31-5-1969 and in the meanwhile the aforesaid application Exh. 48 was given on 29-5-1969, The learned Magistrate rejected that application and then delivered the judgment on 31-5-1969.
3. Now the contention raised by Mr. Barot before us was that while the transfer application was pending before the Sessions Court in the period between 24-2-1969 and 3-4-1969 the learned Magistrate recorded evidence of six witnesses ignoring the request of the petitioners to adjourn the matter on the ground that the transfer application was pending. It was also urged by him that while the transfer application was pending before the High Court in the period from 3-5-1969 to 29-5-1969 the learned Magistrate recorded the evidence of three witnesses on 26-5-1969, recorded statements of the accused, heard arguments and posted the matter for judgment. In the submission of Mr. Barot, both these actions of the learned Magistrate were contrary to law and therefore the trial was vitiated as a result of these actions. As against this, Mr. Mehta, learned Asstt. Govt. Pleader, urged in the beginning that the only duty cast upon the Magistrate under the terms of Sub-section 8 of Section 526 is to adjourn the case when intimation is given to him in the first instance that the party wants to move the High Court for transfer of the case and if the Magistrate has adjourned the case giving sufficient time not only for enabling the party to move an application for transfer but also enabling it to obtain an order thereon, then there is no duty cast upon the Magistrate to adjourn the matter for the second time merely because the transfer application is pending. In developing this submission he urged that the words 'an order to be obtained thereon', occurring in Sub-section (8) of Section 526 do not mean the final order of the superior Court on the transfer application but meant an interim order like an order of admission and calling for records and proceedings or in case of High Court an order for stay. On further discussion of the matter, Mr. Mehta also ultimately conceded that in view of one decision of Bombay High Court and one of Calcutta High Court, it would be correct to interpret Sub-section (8) of Section 526 to mean that the learned Magistrate is bound by the terms of that sub-section to go on adjourning the matter from time to time till a final order is obtained on the transfer application by the party concerned. He urged that the view expressed by Thakor, J. in Cr. Appeal No. 362 of 1966 decided on 28-6-1968 is correct.
4. We will first examine the question in terms of the language of Sub-section (8) of Section 526 of the Criminal Procedure Code. An explanation is also appended to Sub-section (8) preserving the power of the court under Section 344 of the Criminal Procedure Code by saying that nothing contained in Sub-section (8) restricts that power. But the learned advocate for both the sides state before us that the question posed before us does not depend upon this explanation and they do not rely upon it. Therefore, it would not be necessary for us to consider the scope of the Explanation in the present case. We will now reproduce Sub-section (8) of Section 526, which reads as under:
Section 526(8). 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 Section S28 the Court shall, upon his executing, if so required, a bond without sureties, of an amount 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;
Provided that nothing herein contained shall require the Court to adjourn the case upon a second or subsequent intimation from the same party if the application is intended to be made to the same Court to which the party has been given an opportunity of making such an application or where an adjournment under this subsection has already been obtained by one of several accused, upon a subsequent intimation by any other accused.
Explanation--Nothing contained in Sub-section (8) or Sub-section (9) restricts the powers of a Court under Section 344.
In the first place this sub-section contemplates a mere intimation to the Court by the party interested that he intends to make an application for transfer and on receipt of that intimation, if that intimation is made before the defence closes its case, the Court is directed by the express terms of the sub-section to adjourn the case for such a period which would be sufficient for happening of two events namely, giving of an application for transfer and obtaining of an order thereon. The word 'shall' in Sub-section (8) gives in the clearest possible terms the mandate of the Legislature to the Court to whom the intimation is given. If at that stage the Court does not adjourn the matter in spite of such intimation, the proceedings taken by the Court after refusing adjournment, are vitiated and so far as that point is concerned, it is settled by the decision of the Bombay High Court reported as Pandurang Pundlik Shanbhag v. Emperor : AIR1931Bom411 . It was held in that case that the provisions of Sub-section (8) of Section 526 are absolutely imperative in terms and the Magistrate is bound to adjourn the case till such period as would afford a reasonable time for the application for transfer to be made. It was also held that in a case where the Magistrate without granting such adjournment proceeds with the case, the trial becomes illegal and not merely irregular. Same view has been taken by the Calcutta High Court in State of West Bengal v. S. Narayan Rao 1968 Cri. Law Journal page 1396 overruling its previous decision reported as Neamat Shah v. Hanuman Buksha : AIR1931Cal626 . If, this is the settled position of law with regard to the duty imposed upon the Magistrate to stay the proceedings and adjourn the matter, where he is first intimated about a mere intention to make a transfer application, there is no reason why the same position would not be applicable at a subsequent stage when he is informed that the transfer application has already been made to the superior Court and is pending. In fact, the obligation on the learned Magistrate not to proceed with the matter and adjourn it becomes all the more greater in a case where he is informed that the party has taken action as per its previous intimation and has given a transfer application, which is pending. If in such a case, the Magistrate is held to be free to proceed with the matter during the pendency of the transfer application before the superior Court, the provisions relating to the exercise of the power of transfer by the superior Court would become meaningless and illusory. But apart from that we find sufficient indication in Sub-section (8) itself and its proviso showing that the Magistrate is bound to adjourn the matter from time to time till the final decision of the transfer application, once it is brought to his notice that a transfer application has been made and it is pending. This is clear from the words 'an order to be obtained thereon. 'There is no reason why we should construe these words to mean an interim order or an order of admission and calling for record and proceedings or an order for stay as initially urged by Mr. Mehta. The word 'thereon' would indicate that the order contemplated by the sub-section is the order to be made on the application and the order which has to be made on the application would be with regard to its final disposal. To restrict the words 'an order to be obtained thereon', as contended by Mr. Mehta initially, would amount to making the remedy of a litigant to approach the higher Court for transfer of the case illusory in spite of the litigant having done all that was within his power by moving the higher Court by way of a transfer application. It is obvious that after giving the transfer application to the Court the matter is not in the hands of the litigant with regard to the period within which it has to be disposed of by the higher Court. Therefore, it may not be possible for litigant to obtain the final order on his transfer application within a particular period, nor is it possible to think that the Magistrate can also visualize the period once and for all within which the transfer application can be finally disposed of. It is true that while adjourning the matter on receiving intimation of an intention to make transfer application by a party interested, the Magistrate has to take into consideration the two contingencies contemplated by Sub-section (8) namely, the making of an application for transfer and obtaining of an order thereon and has to fix the period of adjournment taking into account both these contingencies. If, within that period the first contingency is satisfied and the second contingency does not materialise, all that the learned Magistrate can do, is to extend the period from time to time till the order has been obtained on the transfer application. In our opinion, the words 'an order to be obtained thereon' mean a final order passed by superior Court on the transfer application. The remedy given to a litigant for getting the case transferred from one Magistrate to another can be made effective only if this interpretation is given to these words, and by giving this interpretation we are emphasizing the fact that the right given to a litigant to get the matter transferred from one Court to the other should not be made illusory by any restricted interpretation of these words. The very nature of the power of transfer of a case from one Court to another implies that the superior Court exercising that power withdraws the case from seisin of the Magistrate before whom it is pending and makes it over to another Magistrate. Therefore the power to transfer the case may affect ultimately the competence of the Magistrate before whom the case is pending to try that case. In case of such a power, it is but natural that during the pendency of proceedings requesting the superior Court to exercise this power, the proceedings before the Magistrate should not go on and to bring about this result the Legislature has provided for a duty on the part of the Magistrate to adjourn the case for such period as will not only afford sufficient time for making the transfer application but also for obtaining an order thereon. As observed earlier, the mandate has been given in the clearest possible terms by Sub-section (8) itself and therefore any action in contravention of this mandate is illegal and the ultimate exercise of the power of conviction based on such an action also becomes illegal.
5. The view taken above gets support from the proviso to Sub-section (8). It is already shown that under the sub-section a duty is cast upon the Magistrate to adjourn the case for such period as will be sufficient to cover two contingencies viz., making of an application for transfer and obtaining of an order thereon. Now, the proviso makes an exception inter alia with regard to the first contingency by laying down that if the first contingency is not brought about by the litigant failing to apply for transfer within the period fixed as a result of the first intimation, the Magistrate is not bound to adjourn the proceedings when that litigant approaches him with second intimation to adjourn the same, on the ground that he intends to apply for transfer to the same Court for which he had been given an opportunity earlier. Thus, if the litigant has been given an opportunity to apply for transfer on the first intimation seeking adjournment and he does not apply for transfer within the period of adjournment the rigour of the absolute direction contained in the sub-section is relaxed when the litigant approaches the Magistrate with a second intimation for the same purpose and the Magistrate is given the liberty to refuse an adjournment, and therefore, proceed with the matter. It appears that but for this proviso the absolute mandate or direction contained in the sub-section would have left no alternative for the Magistrate but to adjourn the case on the second and subsequent intimation also even though the litigant giving intimation would not make an application for transfer to the superior Court within the prescribed period. Now, it is very significant to find that no such relaxation has been made on account of non-happening of the second contingency contemplated by Sub-section (8) namely, obtaining of an order on the transfer application. Thus, if within the period prescribed as sufficient by the Magistrate not only for making of a transfer application but also for obtaining a final order thereon, no final order disposing of the transfer application is made, the Legislature has not said that the Magistrate can refuse an adjournment and refuse to fix another period for disposal of the transfer application. Thus, the rigour of the absolute mandate contained in Sub-section (8) is not relaxed with regard to the happening of the second contingency. The reason for this is obvious. As observed earlier, it is not in the hands of the litigant to obtain a final order on the transfer application within a specified period as fixed by the Magistrate. Therefore, if within such period no order could be obtained by the litigant concerned, even though he has made the transfer application, he cannot be penalised by proceeding with the trial during the pendency of the transfer application and by denying him the effective exercise of the very right to get the matter transferred by the superior Court, conferred upon him by Sub-section (8). Therefore, the fact that the legislature made no exception to the mandatory nature of the provisions of Sub-section (8) in the case of non-happening of the second contingency itself indicates that the mandate contained in the sub-section debarring the Magistrate for all practical purposes from proceeding with the trial remains operative till a final order is obtained from superior Court on the transfer application.
6. The direction or the mandate given in the Sub-section (8) to the Magistrate concerned is to adjourn the matter. It is a mandatory provision as pointed out earlier and when the Legislature says that the Magistrate shall adjourn the matter it follows by necessary implication that the Magistrate is prohibited from exercising his jurisdiction by this mandate in absolute terms subject to the exception made by the proviso to Sub-section (8). In that view of the matter it is clear that the learned Magistrate in the present case exercised his jurisdiction to proceed with the trial during the pendency of the transfer application before the Sessions Court and the High Court in violation of this implied prohibition. As such, the trial held by him has been vitiated.
7. It is true that with regard to the evidence recorded on 26-5-1969 the learned Magistrate had proceeded to record the evidence after receipt of intimation from High Court that the stay granted by the High Court was vacated. But, this in our opinion, would not affect the decision arrived at by us because notwithstanding vacating of the stay granted by the High Court, the transfer application was pending before the High Court on 26-5-1969 and in the view that we have taken of the provisions of Section 526 the pendency of this application before the High Court prevented the Magistrate from exercising his jurisdiction by virtue of the implied prohibition contained in the mandate given in Sub-section (8) to adjourn the proceedings.
8. We are not unaware of the possibility of a dishonest litigant abusing the right conferred upon him under Sub-section (8) of Section 526 and delaying the proceedings for some time. But that possibility cannot compel us to give a different interpretation to the salutary provisions contained in this Sub-section (8), which interpretation is likely to cause irreparable loss to honest litigants. In our opinion, therefore, during the pendency of transfer application before the superior Court, the subordinate Court is bound to adjourn its proceedings from time to time till the transfer application is finally disposed of by the superior Court. This is the only interpretation possible of Sub-section (8) of Section 526. We, therefore, agree with the view taken by Thakor J., in Criminal appeal No. 362 of 1966 decided on 28-6-1968. In that case, during the pendency of the transfer application the complainant remained absent in the Trial Court and his complaint was dismissed on that ground. Thakor J. observed that 'all that the Court can ask a party to do is to see that the party will make an application within a reasonable time to be fixed by the Court and the Court must adjourn the case for such a period as will afford sufficient time for the application to be made. He further observed that once these conditions are satisfied, the Court is bound to wait till an order is obtained on the transfer application.
9. In view of these reasons it is clear that the action of the learned Magistrate in recording evidence during the pendency of the transfer applications before the Sessions Court and the High Court has vitiated the entire proceedings against the present petitioners. Therefore, the order of conviction and sentence passed against the petitioners will have to be set aside and the matter will have to be remanded for fresh trial against the present petitioners.
10. We do not think that in view of the events which have transpired in this case, this case should be heard by the same learned Magistrate, who convicted the petitioners. We feel that it should be heard by another Magistrate in the District. We would leave the choice of the Magistrate to the learned Sessions Judge.
11. In the result, the application succeeds and the rule is made absolute.
12. The conviction of the petitioners and the order of sentence passed against them by the Trial Magistrate and confirmed by the learned Additional Sessions Judge are set aside. The case is sent back to the Sessions Court at Mehsana with a direction that the Sessions Judge will make over the case for fresh trial against the petitioners to any Magistrate in his District other than the Magistrate who tried this case and convicted the petitioners. Petitioner No. 1 Gafurbhai Daudbhai is in jail as stated by his learned Advocate Mr. A.M. Barot. We direct that he will be set at liberty in so far as this case is concerned.