N.C. Talukdar, J.
1. This is an appeal by the Superintendent and Remembrancer of Legal Affairs West Bengal, on behalf of the State of West Bengal against an order dated the 24th April, 1967 passed by Shri A. K. Roy, Magistrate, first class, Sealdah, in case No C-1848 of 1964 acquitting the accused-respondent under Section 251A(11) of the Code of Criminal Procedure, of charges under Sections 417 and 419 I. P. C.
2. The facts leading on to the impugned order can be put in a short compass. In response to an employment notice by the Railway Service Commission, the accused-respondent applied for one of the posts of Inspector of Works and in his application he described his caste as 'Dandasi' which is a scheduled caste. He was ultimately appointed in one of the vacancies reserved for the scheduled caste and was posted in the South-East Zone on 22-2-56. It subsequently transpired that the accused-respondent belonged to the 'Kapu' (Telaga) community which has not been declared as a scheduled caste by the Government The Delhi Special Police Establishment, Hyderabad Branch accordingly recorded a F. I. R. on 31-12-62 and investigated into the case, ultimately submitting a charge-sheet against the accused-respondent on 28-9-64 in the court of Police Magistrate at Sealdah. The accused-respondent was summoned by the said Magistrate under Section 417 and 419 I. P. C. and thereafter on a consideration of the relevant materials on record the accused was discharged by the said learned Magistrate.
3. The State of West Bengal moved against the said order of discharge before the Sessions Judge, 24-Parganas and by an order dated 15-6-66 the Additional Sessions Judge 24-Parganas set aside the said order of discharge and directed a further enquiry. The case on being sent back to the court of the Police Magistrate of Sealdah, he framed charges against the accused-respondent under Sections 417 and 419 I. P. C. by an order dated 30-8-66. At one stage, it was proposed to move the Supreme Court for transfer of the case under Section 561A of the Code of Criminal Procedure from West Bengal to Andhra Pradesh on the ground that the records and the material witnesses are in the State of Andhra Pradesh. But the said application was not ultimately moved. The State of West Bengal subsequently moved the Sessions Judge. 24-Parganas for the transfer of the said case from the court of the Police Magistrate, Sealdah on the ground that the said Magistrate having once discharged the accused on a consideration of the materials before him. the prosecution reasonably apprehended that it would not get a fail trial from him. The Sessions Judge. 24-Parganas by his order dated 24-6-67 rejected the said petition and the matter was sent back to the Police Magistrate's Court at Sealdah. On 20-2-67, the Magistrate issued notices on both the parties for appearance in the court on 15-3-67 and onthat date in the presence of the accused-respondent and the Special Public Prosecutor present on behalf of the prosecution, and after having heard both the sides, the case was directed to be put up on 24-4-67, 25-4-67, 26-4-67 27-4-67 26-4-67 27-4-67 , 28-4-67 and 29-4-67 at 11-15 a.m. -- 'on all dates for P. Ws' and the said witnesses were summoned as per list dated 30-8-66. On 24-4-67, the first date so Fixed, no P. Ws were present and an application for adjournment was filed on behalf of the prosecution statinR that tht Deputv Remembrancer, West Bengal, was instructed to move the High Court under Section 526 of the Code of Criminal Procedure against the order passed by the Sessions Judge. 24-Parganas. The trying Magistrate who, we have been informed, has since been transferred however observed that the prosecution in the facts and circumstances of the case, did not deserve any further adjournment and holding that ''the accused is found not guilty under Sections 417 and 419 I. P C.,' he acauitted the accused-respondent under Section 251A(11) Cr P. C.
4. Mr. Dilip Kumar Dutt, Advocate appearing on behalf of the State of West Bengal has put forward a three-fold submission before us The first argument of Mr. Dutt is that the order concerned is in non-conformance to Section 251A(11) of the Code of Criminal Procedure because the witnesses were already summoned and they having not appeared, it was just and fair that the Magistrate should have waited for their appearance before finding the accused not guilty of the charge and acquitting him thereof. The next submission of Mr. Dutt is that the order of acquittal on 24-4-67 is premature because the case was fixed on six different dates and the trying Magistrate should not have acquitted the accused-respondent on the very first date for tht non-appearance of the witnesses. The third and the last submission of Mr. Dutt is that the order is clearly bad under Section 526(8) of the Code of Criminal Procedure inasmuch as it was the bounden duty of the trying Magistrate to adjourn the case for s reasonable period upon such terms and conditions as he deemed fit and proper. Mr. Nalin Chandra Banerjee, Advocate, appearing on behalf of the accused-respondent has urged that the said order is not bad under Section 526(8) Cr. P. C. as alleged or at all inasmuch as the said application firstly was not filed under the said section but was merelv one for adjournment without any bond having been taken; and secondly that, even if it was so, the refusal to adjourn the case is a mere irregularity and not an illegality, vitiating the entire proceedings. Mr. Banerjee next commented upon the conduct of the prosecution in praying for adjournments after adjournments over a considerable period of time to the serious prejudice of the accused, who was coming from outside; and that in any event, in view of the provisions of Chapter XXI of the Code of Criminal Procedure, the charges having been framed under Section 251A(3), there was noother alternative left to the trying Magistrate than to proceed under the provisions of Subsection (11) of the said section.
5. The first contention of Mr. Dutt is that the said order of acquittal cannot be sustained in view of the provisions of Section 251A(11) Cr. P C. Mr. Dutt has urged in this context that before the court could justifiably find the accused not guilty, after framing the charges under Section 251A(11) Cr. P. C., it must conform to the provisions of Sub-sections (5) to (10) of the said section. Here in this case according to Mr. Dutt, no evidence at all having been taken, it is difficult to comprehend as to how the Magistrate could find the accused not guilty on merits it is true, he contends, that after a charge is framed the court can either convict or acquit an accused but certainly the legislature has not enjoined the court not to adjourn the proceedings in any event even on reasonable and bona fide grounds. In this particular case according to Mr. Dutt the prosecution having already applied for summoning the prosecution witnesses, who were unfortunately not present on that date, the impugned order of acquittal without enforcing the attendance of the prosecution fitnesses in the first instance, has been bad (sic) improper.
6. Mr. Banerjee, appearing on behalf of the accused-respondent has argued, however that the position in law is entirely changed after the amendment of the Code of Criminal Procedure by the Amendment Act XXVI of 1955. It provides for a separate procedure lo be adopted for the trial of warrant cases instituted on a police report and the same could be found in Section 251A Cr. P. C. which is a self-contained section and lays down the procedure for the trial of such cases instituted on a police report. Accordingly the provision of Section 252(2) Cr. P. C. laying down that.
'The Magistrate shall ascertain, from the complainant or otherwise, the names of my pprsons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary'
would no longer apply to such a case. Mr. Banerjee has further contended that in view of the same, it can no longer be urged that the order of acquittal passed under Section 251A(11) Cr. P C without taking steps for securing the attendance of the witnesses and without recording any evidence is per sc bad and untenable. The analogy of Section 256 Cr. P. C. and the line of cases thereunder will not hold good and the observations made by Mr Justice K. C. Dasgupta and Mr. Justice P. N. Mookerjee in the case of Bepin Bihari Maity v. Paban Sardar : AIR1951Cal418 will not be of any avail The point is one whereupon the decisions of the various High Courts in Indiaare not uniform. The view taken by a Division Bench of the High Court appears to have been transcended by a later single Bench decision of the same court upon the purported basis of some observations made in the said Division Bench decision itself and is not also fully shared by the decisions passed by some other High Courts. It has been held by Mr. Justice N. K. Sen and Mr. Justice D. N. Das Gupta in the case of Jyotirmoyee Bose v. Birendranath : AIR1960Cal263 that
'It will be observed that under Sub-section (7), on the day fixed all prosecution evidence produced shall be taken. Under the former procedure i.e. before the amendment came into force as laid down under Section 252 and the following sections, the Magistrate had a duty to ascertain the names of the prosecution witnesses and to summon them. It is to be observed that there is no analogous provision in Section 251A to the effect that it would be a duty of the police officer-in-charge to apply for the summons and to produce them..... we are, therefore of the view that in a case tried under Section 251A of the Code, the Magistrate was not compelled as he was if the case was tried as a warrant case instituted other than on the police report to proceed in terms of Sections 256 and 257 of the Code.'
A later single Bench decision of this Court by Mr. Justice K. C Sen has also taken a view, which though it approves of the principles laid down in the abovementioned Division Bench decision, has ultimately travelled beyond the same on the purported basis of some observations made in the said Division Bench decision, that clearly appears to be a mistake or at best an obiter. In the ease of Paban Chandra v. Dulal Ghosh : AIR1965Cal387 . Mr. Justice K. C. Sen initially agreed with the Division Bench decision in the case of : AIR1960Cal263 that
'Sub-section (7) provides that on the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution. This sub-section casts no duty upon the Magistrate to issue summons upon any witness in a proceeding started under Section 251A and this is distinguishable from the provisions contained in Section 252 which provides for cases started upon private complaint.'
At the later part of the judgment however. His Lordship observed that
'It has been decided in a case reported in : AIR1960Cal263 that Sub-section (6) of Section 251-A does not enjoin upon the Magistrate any duty to compel the attendance of any witnesses unless it is applied for From this decision it, appears that if any application on behalf of the prosecution is made for the purpose of issuing process upon the witnesses the Magistrate may in his discretion accede to the prayer made by the prosecution and when once such a prayer is accepted it is the duty of the Magistrate to see whether the order as passed by him has been carried out or not'.
It is pertinent to note however that Section 251A (6) Cr. P. C. does not contain any such provision as referred to in the case reported in : AIR1960Cal263 or as quoted therefrom by Mr. Justice K. C. Sen in the case reported in : AIR1965Cal387 . Moreover Mr. Justice Sen although he initially held in the said case that
'this sub-section casts no duty upon the Magistrate to issue summons upon any witnesses in a proceeding started under Section 251A and this is distinguishable from the provisions contained in Section 252, which provides for cases started upon private complaint'
appears to have travelled beyond the ultimate findings arrived at by their Lordships of the Division Bench in the case reported in : AIR1960Cal263 viz., that there is no duty cast upon the Magistrate to compel the attendance of any witness in view of the provisions of Section 251A(7) of the Code of Criminal Procedure. The expression 'Subsection (6) of Section 251A' as stated in paragraph 5 of the decision, reported in : AIR1960Cal263 , appears to be a mistake for Sub-section (7) and the words 'unless it is applied for' do not appear either in Sub-section (6) or (7) and also appear to be an obiter. Mr. Justice K C Sen's findings as based upon the said observation, do not really conform to the findings ultimately arrived at by the Division Bench in : AIR1960Cal263 . The view taken in the abovementioned Division Bench decision of the Calcutta High Court appears not to have been fully shared by some other High Courts. In the case of State of Orissa v. Shibcharan Singh : AIR1962Ori157 . Mr. Justice R. K Das observed at page 158 that
The learned Advocate-General, however, contended that no restricted meaning should be imported to the word 'produced' since it is not possible to produce any witness in the court except through the legal process of issuing summons or warrants etc, I think there is much force in this contention. To my mind the word 'production' has no particular significance. It only means the production of oral or documentary evidence at the instance of prosecution .....
Section 540 gives a general power to the Court to summon and examine any person as a witness if his evidence appears to be essential to the just decision of the case. The object of this section obviously is to enable court to arrive at the truth of the fad under investigation irrespective of whether a particular party chooses to summon him or not ..... As I have said before, theword 'produced' in Section 251-A cannot be given any restricted meaning as to saddle the prosecution with the entire responsibility of producing the evidence. As stated above, a duty also is cast upon the courts for enforcing attendance of witnesses bythe process provided in the Criminal Procedure Code.'
In the case of State of Bihar v. Polo Mistry : AIR1964Pat351 , Mr. Justice G. N. Prasad held at page 392 that,
'The prosecution may either undertake to produce the prosecution witnesses through its own agency or secure their attendance in court through the agency of the court. Where the prosecutor has himself undertaken to produce the prosecution witnesses, the entire responsibility for production of the evidence in support of the prosecution case is that of the prosecution. But where the prosecutor has taken recourse to the agency of the court for securing the attendance of the prosecution witnesses, upon whose evidence he proposes to rely in support of his case, it is undoubtedly, the duty of the Magistrate to take steps for securing attendance of the prosecution witnesses in his court ..... The learned Magistratehad ordered summons to be issued for the appearance of the prosecution witnesses in equal batches for 3 different dates. The service return of the summons had also been received back against 15 prosecution witnesses. If thereafter none of the prosecution witnesses turned up in response to the summons of the Court, then it was the obvious duty of the learned Magistrate to have taken steps to compel their attendance by issuing warrant of arrest against them in accordance with Section 90(b) of the Code of Criminal Procedure.'
7. The next case is the case of Public Prosecutor v. M. Sambangi Mudaliar : AIR1965Mad31 , Mr. Justice Ramakrishnan has held at page 32 of the said decision that.
Taking into account the scheme provided in the several sub-divisions of Section 251-A Cr. P.C. it can be stated that the intention of the legislature as expressed in these provisions was not to extend the provision for acquittal under Section 251-A(11) to case where the prosecution had been in default. Under the scheme of Section 251-A Cr P.C. the Magistrate has to consider the statements recorded in the case diary and if he finds the charge to be groundless he can discharge the accused But when he finds the charges to be prima facie substantiated, he is required to frame a charge and then follow the procedure indicated in the several Sub-section from (4) to (9) of Section 251-A it is after this stage has been reached that he is permitted to acquit the accused under Section 251-A(11) What the Magistrate has done in this case is that when he found the prosecution had failed to product their witnesses as required under Subsection (7) of Section 251-A Cr P.C. he has proceeded to record a finding of acquittal under Section 251-A (11) The Magistrate had already framed a charge against the accused which implies that there is prima facie cast against him, which, if unrebutted, would warrant his conviction. That would necessitate calling upon the accusedin any event to enter upon his defence under Section 251-A (8) before Section 251-A (11) is applied in his cast ..... In warrantcases where the court has already framed a charge under Section 251-A, Cr. P.C. against the accused, an important duty is laid on it to see that alt the powers available to the court for the examination of witnesses are exercised for a just decision of the case, irrespective of the laches of the complainant. Such powers include the powers under Section 540 Cr. P.C. to summon witnesses on the motion of the court.'
In the cast oi State of Mysore v. Narasimbe Gowda. AIR 1965 Mys 167 Mr. Justice. T.K. Tukol and Mr. Justice D. M. Chandrasekhar have observed at page 169 that
'it is necessary to note that none of the sub-sections of Section 251-A provide for issue of summons to the witnesses for the prosecution at the instance of the prosecutor But Chapter VI of the Code contains various provisions dealing with the powers of the court to issue summons, warrants for arrest, search-warrants, etc. Where a prosecution is instituted on behalf of the State, it is open to the prosecutor to keep the witnesses present it their attendance 'could be secured without the assistance of the court. Where it is not possible for the prosecutor to secure the attendance of any of the witnesses without summons he can pray to the court to render the necessary assistance by issuing any process for compelling attendance of any witnesses for the purpose of giving evidence in the case..... Theword 'finds' seems to have been used in the sense of 'decides' ''concludes' or 'holds' implying that the finding to be arrived at shall be after consideration of all the evidence adduced on his behalf if any...... The Codedoes not provide for or contemplate an order of acquittal being recorded merely on the ground that the prosecution or the complainant had failed to produce evidence on the date fixed by the Magistrate'
In another case viz.. In the case of State v. Nand Kishore . Mr. Justice C. B. Bhamava has observed at page 230 that :
'There is nothing in Section 251-A(7) which precludes the court from issuing summons to the witnesses, if so required by the prosecution. The word 'produced' in Subsection (7) includes the bringing forward of the witnesses by the prosecution at its own instance or through the process of the court whom it desires to examine at the trial. Similar view was taken in : AIR1964Pat351 and : AIR1962Ori157 ..... I amtherefore, of the view that Section 251-A does not limit the powers of the Magistrate to issue process to the witnesses for their attendance if such request is made on behalf of the prosecution and secondly if the prosecution does not produce any witness it is the duty of the court to examine such witnesses as are necessary for the ends of justice before proceeding to act under Subsection (11) The order of acquittal passed without examining any witness in the case in this connection a reference may be made to two other decisions on the point. Recently in the case of State v. Kali Ram Nand Lal it was held that in my opinion, is not warranted by Sub-section (11) of Section 251-A.'
'The duty to summon the witnesses in the course of the trial is that of the Magistrate or the court concerned. I do not find anything in Section 251-A or in any other provision under the Criminal Procedure Code which debars the Magistrate from summoning the prosecution witnesses or enforcing their attendance if they refuse to appear on the date fixed for their evidence despite the fact that the prosecution had directed them to attend the Court on that day.'
It was further 'observed by their Lordship in the said case that
'Whether or not the Magistrate will proceed to enforce the attendance of witnesses for the prosecution and grant adjournments for that purpose would depend upon the facts and circumstances of each case.'
The position in law however has been made quite clear by a recent Division Bench decision of this Court on 24-8-1966 in Criminal Revn. Case No, 1197 of 1964 (Cal), Bindaprasad Kushwaha v. Rajindra Singh which has not yet been reported. Mr. Justice Amaresh Roy and Mr Justice S. N. Bagchi have held therein that in such a case the Magistrate should exercise his discretion in the matter of calling as witnesses persons who are likely to be acquainted with the facts of the case under Section 540, Cr. P.C. for a just decision of the case. Their Lordships further referred to the necessity of exercising
'the supervening consideration for doing justice evenly to both the parties before a criminal trial is stultified or brought to an end by omission of any party'
We fully agree with the principles laid down by their Lordships in the said case.
8. Upon a consideration of the different and conflicting decisions as referred to above and after hearing the submissions of the respective parties we hold that after the amendment of the Code of Criminal Procedure by the Amendment Act XXVI of 1955, there is no legal bar to the trying Magistrate's finding the accused not guilty and recording an order of acquittal under Subsection (11) to Section 251-A. If and when the prosecution witnesses are not present in court inasmuch as such evidence is to be 'produced' under Sub-section (7) by the prosecution it is also true that there is no provision similar to Section 252 (2) in Section 251-A, Cr. P.C. But it cannot be overlooked that both the sections do appeal in the same Chapter of the Code. viz.. Chapter XXI and accordingly the rule of prudence enjoins that the discretion of the court be exercised by proceeding under Section 540 of the Code of Criminal Procedure to compel the attendance of such witnesses in a fit and proper case, whenever deemed necessary, instead of disposing of the matter summarily. Each case however, must depend on its own facts and it is pertinent to refer in this context, to the observations of their Lordships of the Mysore High Court in the case of AIR 1965 Mys 167 at p. 169 that
'We do not desire to express any opinion in the present case on the question whether the Magistrate cannot at all record an order of acquittal under any circumstance where the prosecution or the complainant persistently and unreasonably fails in his obligation to keep the witnesses present or secure their attendance'
in view of the undue delay already made and the consequent harassment caused to the accused-respondent, we do not consider that this is a fit and proper case where the trying Magistrate should have further adjourned the trial for evidence and not exercise the powers provided for under Section 251-A (11), Cr. P.C. Moreover the prosecution did not pray before the trying Magistrate for an adjournment for compelling the attendance of the prosecution witnesses already summoned. An adjournment was only prayed for on the date fixed under Section 526 of the Code of Criminal Procedure to enable the prosecution to move the High Court but the same was refused. Therefore, nothing really turns on this point raised by Mr. Dilip Kumar Dutt and the same fails. The present case must ultimately depend upon the decision on the third and the last ground urged by Mr. Dutt, regarding the non-conformance to the mandatory provisions of Section 526(8) of the Code of Criminal Procedure and its effect upon the entire case
9. The second submission of Mr. Dilip Kumar Dutt is that the order of acquittal passed on 24-4-67 is premature because the said date was the very first date and merely one of the 6 dates fixed consecutively for recording the evidence of the prosecution witnesses. It was in any event, expedient in the interests of justice that the trying Magistrate should have waited till the last date viz., the 29th April 1967 before passing the impugned order of acquittal. It is difficult otherwise Mr. Dutt contended to rule out the possibility that the witnesses who were absent on the first date -- may be for good reasons -- might have appeared on any one of the following dates. This argument is undoubtedly a plausible one and is good so far as it goes it is true that the dominant intention as envisaged in Section 251-A. Cr. P.C. is not punitive but is to ensure a proper determination on merits. Mr. Banerjee, however, has joined issue here and has emphatically submitted that these continued prayers for adjournments have not been fair to the accused-appellant, who is a respectable officer and has to come every time from such a great distance. There is much force behind the said arguments of Mr Banerjee. Even a cursory reference to the order-sheet would convince one that the same is replete with so many prayers for adjournments on the part of the prosecution resulting in a considerable delay in the ultimate disposal of the case. It is passing strange that the case has been dragged on from 1964 to 1967, upon one ground or other Justice delayed is justice denied and having regard to the aforesaid background of the case we do not think that the order of acquittal can be assailed on the groundthat it is premature. Therefore this contention of Mr. Dutt also fails.
10. The third and the last contention of Mr Dutt however is a material one and if it succeeds, will go to the very root of the case, nullifying the order of acquittal which has been impugned There has been according to him a non-conformance to the mandatory provisions of Section 526 (8) of the Code of Criminal Procedure, resulting in a mistrial Mr. Dutt has submitted that an application for adjournment was filed on behalf of the prosecution in the court of the trying Magistrate on 24-4-67 praying inter alia for an adjournment because the State intended to move the High Court for transfer under Section 526 of the Code of Criminal Procedure and had in fact instructed the Deputy Legal Remembrancer, State of West Bengal, in that behalf The provision of Section 526 (8), Cr. P.C. enjoins that when such an application under this section or under Section 528 of the Code of Criminal Procedure is made the court shall adjourn the case upon the parties executing a bond. The provisions are therefore mandatory and the court was bound to adjourn the proceedings as soon as the said application was filed. The order of acquittal which was ultimately passed without adjourning the case is accordingly bad and improper.
11. Mr. Nalin Chandra Banerjee Advocate has argued that the said contention of Mr. Dutt is unwarranted and untenable. He has urged firstly that neither was the application in question filed under Section 526 (8) of the Code of Criminal Procedure inasmuch as there is no mention of the said sub-section at the top of the application nor was any bond taken from the party concerned: and secondly that even if the said application be deemed to be a proper application under Section 526(8) of the Code of Criminal Procedure the refusal to adjourn the case is a mere irregularity and not an illegality vitiating the entire proceedings. The first contention is wrong because there is a clear reference to Section 526 in the body if this petition. In support of his other contention Mr. Banerjee has referred to the case of Neamat Sha v. Hanuman Buksha : AIR1931Cal626 wherein Mr. Justice Lort-Williams and Mr. Justice Mallik held that the Magistrate's refusal to grant an application for adjournment to move the High Court may not be justified but it is an irregularity, curable under Section 537 of the Code of Criminal Procedure. Mr. Justice Lort-Williams who delivered the judgment traced the history of the section from 1861 as embodied in Section 35 of Act XXV of 1861. Section ii4 of the Code of Criminal Procedure 1872; Section 526 of the Code of Criminal Procedure 1882: the Amendment Act passed in 1884 when Section 526A was added; the Revised Cade of 1898; the Amendment Bill of 1914 which was revised by the Lowndes Committee; and the Amendment Act XVIII of 1923; and held at page 632 of the judgement that
'The abuses made possible by the section cannot be cured in these ways. The only remedy is by way of amending legislation which we trust will be undertaken at the earliest possible moment ..... Inthe absence of any such amendment we have no option but to hold that the Magistrate's refusal to adjourn was not justified and was contrary to the provisions of the section. The only point left to decide is, whether we must or ought to set aside the proceedings as invalid in spite of the fact that the notification was given mala fide for the purpose of delay and to defeat the ends of justice'.
His Lordship ultimately observed, in the background of the circumstances of that case that 'we consider that the refusal of the Magistrate to adjourn is an irregularity which can be cured by applying the provisions of Section 537. Cr. P.C. Mr. Banerjee accordingly contended that the word shall in Section 526(8) of the Code of Criminal Procedure is merely directory and not mandatory and as such the trying Magistrate's refusal to adjourn the proceedings, is but an irregularity curable under Section 537. Cr. P.C,
12. We do not agree with Mr. Banerjee's contention on this point and his arguments, upon ultimate analysis, are untenable. The observations made by Mr. Justice Lort-Williams and Mr Justice Mallik were in a different context and against the back-drop of the Code of Criminal Procedure as it stood amended by the Amendment Act XVIII of 1923. The position in law thereafter is entirely different, after the Amendment Acts XXI of 1932 and XXV of 1955 and it is the said Amended Acts that would apply to the facts of the present case. The previous decisions under the old Act, as it stood amended by the Amendment Act XVIII of 1923, will therefore no longer be good law Sub-section (8) of Section 526 of the Code of Criminal Procedure has been recast with important modifications in the place of the old Sub-section (8) under the Amendment Act XVIII of 1923 and then under the Amendment Act XXVI of 1955.
The difference in the language of the provisions is obvious. It would appear from Sub-section (8) of Section 526 as amended by the Amendment Act XVIII of 1923 that the stage referred to therein is 'If, in the course of any inquiry or trial, or before the commencement of the hearing of any appeal' and the duty cast on the court is that it 'shall adjourn the case or postpone', the appeal for such a period as will afford a reasonable time for the application to be made and an order to be obtained thereon.' Under the Amendment Act XXI of 1932 the said sub-section was materially altered and the provision as contained therein is as follows:
'If in any enquiry 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, the court shall upon hip 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 or, where, an adjournment under this sub-section has already been obtained by one of several accused upon a subsequent intimation by any other accused'. It will thus appear that the stage referred to under the Amendment Act of 1932 is ''at any stage before the defence closes its case' and the duty of the court is that it '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'. Under the Amendment Act XXVI of 1955, the only addition that is made in Sub-section (8) is 'or under Section 528' and in the proviso thereunder is 'if the application is intended to be made to the same court to which a party has been given an opportunity of making such an application.'
13. it will therefore appear that the language is significantly different after the Amendment Act XXI of 1932 and proper meaning and effect has to be given to the same. The principles of interpretation of Statutes rule out redundancy. As was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry, AIR 1920 PC 181, at p. 186 that 'Effect must be given if possible to all the words used, for the Legislature is deemed not to waste its words or to say anything in vain'. Mr. Justice Subba Rao (as His Lordship then was) also observed in the case of Ghanshyamdas v. Regional Assistant Commissioner of Sales Tax, Nagpur : 51ITR557(SC) that 'a construction which would attribute redundancy to a Legislature shall not be accepted except for compelling reasons'. In the case of State of Uttar Pradesh v. Babu Ram Upadhya : 1961CriLJ773 Mr. Justice Subba Rao (as His Lordship then was) observed at page 765 that 'when a statute uses the word 'shall' prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute'. As to the effect of the addition of the Proviso to Sub-section (8) of Section 526 of the Code of Criminal Procedure, as amended by the Amendment Act XXI of 1932 and the use of the expression 'shall' therein, we would refer to the observations made by Lord Herschell in the case of West Derby Union v. Metropolitan Life Assurance Society. (1897) AC 647 (H.L.) at p. 655 that
'Of course a proviso may be used to guide you in the selection of one or other two possible constructions of the words to be found in the enactment, and show, when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it.'
This view was referred to with approval in the case of Jennings v. Kelly, (1939) 4 All ER 464 (HL) at pp. 471-472 of the said report. Lord Russel observed that
'Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear it may without doubt operate to explain which of two or more possible meanings is the right one to attribute to them. One must however read the whole clause before attempting to construe any portion of it and a perusal of the proviso fixes the meaning of the words which precede it.'
We accordingly hold that the expression 'shall' used in Sub-section (8) to Section 526 of the Code of Criminal Procedure, as amended by the Amendment Acts XXI of 1932 and XXVI of 1955 is mandatory and the further use of the same expression in the proviso thereunder merely pinpoints that it is so subject only to the conditions mentioned in the said Sub-section (8) and the proviso thereunder as also to the provisions of Sub-section (9) of the said section. Therefore the decision in AIR 1931 Cal 626 which was made in the context of Section 526(8) of the Code of Criminal Procedure as it stood amended in 1923 is no longer good law in view of the material provisions which have since been added to the said Section under the Amendment Act XXI of 1932 and the Amendment Act XXVI of 1955
14. Even the facts in Neamat Sha's case, AIR 1931 Cal 626 are distinguishable The application for adjournment therein was held to be mala fide in the facts and circumstances of the said case and the stageat which the said application was filed was when the case was fixed 'only for argument and judgment' and not 'in the course of any inquiry or trial or before the commencement of the hearing of any appeal'. Their Lordships who were considering the matter in revision made valuable suggestions themselves for the removal of the defects in the existing Act The Amendment Act XXI of 1932 was only a partial fulfilment thereof and it was the Amendment Act XXVI of 1955 which substantially removed the 'abuses made possible by the section' as referred to by Mr. Justice Lort-Williams in fact, after the passing of the Amendment Act XXI of 1932, Mr. Justice Lort-Williams sitting with Mr. Justice McNair observed in the case of Bhupendra Nath v. Giridharilal : AIR1933Cal582 that 'such was the Gilbertian situation created and such is the embarrassment which the complainant is able to inflict upon the accused by means of this iniquitous section which still disfigures the Code, though some of its worst features have been removed recently by amendment'
15. The point at issue has to be considered also from another standpoint. The application that was filed before the trying Magistrate was a material one, it was for an adjournment so as to enable the prosecution to move the High Court under Section 526 of the Code of Criminal Procedure, against the order passed by the Sessions Judge and therefore it was an application which was ancillary to the original prayer made in this behalf for a transfer. A denial of the said prayer unless and until it was grossly mala fide, was a denial of Justice and may well itself be the ground for transfer in this context, we may refer to the well-known observations of Chief Justice Lord Hewart made in the case of The King v. Sussex Justices; Ex parte Mcearthy, (1924) 1 KB 256 at P. 259 that 'it is not merely of some importance but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done' in this case also the same principle holds good and it is expedient in the interests of justice apart from the mandatory nature of the provisions of the Code that the adjournment prayed for should have been allowed.
16. It is pertinent in this connection to refer to some decisions on the said sub-section interpreting the meaning of the expression 'shall' as incorporated therein, holding the same to be imperative and further laying down that it is the duty of the court to postpone the case when the party interested notifies his intention to apply for a transfer to the High Court. It has further been held that the effect of such refusal is to invalidate and vitiate all the subsequent proceedings in the case. In the case of Ram Rakshpal v. Ram Nath. AIR 1938 All 112 Mr. Justice Allsop observed that 'A court cannot of course pass a conditional order ofadjournment because it has to pass such an order, but it may, when passing its order for adjournment direct that the party whose application has necessitated adjournment shall pay costs of the opposite party'. In the case of in re T. V. Venkatarams Chetti, AIR 1942 Mad 178 Mr. Justice Horwill held at page 179 that 'No option lies to the court to adjourn when once it has been intimated to the Court that the applicant intends to move the High Court for a transfer' in another case namely in the case of Bhagwat v. Emperor, AIR 1942 Oudh 429 Mr. Justice Agarwal observed at page 431 that 'The Calcutta High Court has however taken a different view in : AIR1931Cal626 in that case it was found that the intimation was given to the Court mala fide for the purpose of delaying and defeating the ends of justice. I am not prepared to hold that this application of 5th July was mala fide and made for the purpose of defeating the ends of justice. I agree with the view of the Allahabad, Sind and Bombay High Courts that the provisions of Section 526(8) are mandatory and if they are infringed, the whole trial becomes illegal' in the case of , Mr. Justice Lakshmana Rao and Mr. Justice Happell observed at page 80 that 'Under the provisions of Section 526 a Magistrate on intimation being given of an intention to apply for a transfer if it is the first intimation and is made in a case to which the section applies must grant an adjournment. He has no discretion in the matter, no jurisdiction to refuse an adjournment. The intimation operates, as it were, as a statutory stay'.
17. The third and the last contention by Mr. Dutt has therefore much force behind it and succeeds We hold that the provision of Sub-section (8) to Section 526 of the Code of Criminal Procedure, as amended by the Amendment Acts XXI of 1932 and XXVI of 1955, is a mandatory one and a non-conformant thereof is bad and nullifies the ultimate order of acquittal passed.
18. Mr. Banerjee has finally urged that in any event having regard to the considerable efflux of time that has taken place in this case which has its penesis in June 1955 and also in view of the not very commendable conduct on the part of the prosecution in delaying matters justice demands that there should be no interference with an order which is one of acquittal We are however unable to agree with this contention in the facts of the present case. While we hold that the prosecution has undoubtedly delayed matters by pressing for adjournments after adjournments, causing inconvenience to an accused who has to come from outside, we cannot at the same time overlook that the order of acquittal is undoubtedly passed on a technical ground and not on merits and that too, at a stage, when it was not proper for the trying Magistrate to have passed it. It is indeed de horsthe statute, having been passed in the wake of an order made previously under Section 526(8), Cr. P. C., refusing to adjourn the case, in spite of the mandatory provisions of the Code. In the facts and circumstances of the case and in view of the stage when the said order of acquittal has been passed, it is expedient in the interests of justice that the impugned order of acquittal should be set aside. It is true that law is good but justice is better; but it is also true that justice is in accordance with law. The prosecution is as much a limb of the court as the defence is and the court of law which is also a court of justice must hold the balance even There has been, in this case, no final determination on merits and the impugned order of acquittal is so clearly wrong that its maintenance would amount to a serious miscarriage of justice.
19. in the result, the appeal is allowed; the order of acquittal is set aside; and the case is sent back to the court below for being tried in accordance with law from the stage where it was on the 24th April, 1967 by giving an opportunity to the prosecution to adduce evidence. In view of the considerable delay already made, the Trying Magistrate is directed to dispose of the matter as expeditiously as possible. The records are to go down immediately.
Amaresh Roy, J.
20. I agree.