Posted On by &filed under Allahabad High Court, High Court.

Allahabad High Court
Kishore Rai And Anr. vs Emperor on 27 July, 1928
Equivalent citations: AIR 1928 All 753
Author: Dalal


Dalal, J.

1. This was an application for the transfer of a criminal trial pending in the Court of Mr. Ghanshiam Das at Ballia. He has now been transferred. So the applicants’ object has been gained, and the application requires no further order in that matter.

2. It is necessary, however, for me to note that Mr. Ghanshiam Das acted entirely according to law and was not to blame in refusing to grant postponement on 14th July. There seems to be some misapprehension at the Bar as regards the provisions of Section 526 (8), Criminal P.C. It seems to be thought that postponements could be had in two instalments, one in order to apply to the District Magistrate for transfer and at another time to apply here for transfer. It is overlooked, however, that the clause making it incumbent on a Court to adjourn hearing on an application is confined to Section 526 which deals only with transfers made by this Court. To obtain an adjournment the accused has to notify his intention to make an application “under this section.” The compulsion to adjourn proceedings does not apply to every intention for a transfer. An application for transfer is made to the District Magistrate under Section 528, where he is given the power to withdraw any case from, or recall any case which he has made over to, any Magistrate subordinate to him. This is the power, he can exercise of his own motion, and, therefore, an accused person applies to him to exercise this power which is inherent in him. Under Section 528 there is no injunction given to the trial Court to adjourn ‘proceedings in order to enable the accused person to apply to the District Magistrate. There is reason for this. The District Magistrate is at the spot, and not at a distance like this Court, and, therefore, there would be no necessity to adjourn proceedings to enable an accused person to seek remedy from the District Magistrate at the spot. It is only when the intention of the accused is to come here at a great distance that it will be necessary for proceedings to be adjourned in order to enable the accused person to cover this distance and apply to this Court. If, therefore, an application for adjournment is made on the ground that the accused desired a transfer, it would of necessity be presumed that the application was to be made to this Court, and not to the District Magistrate. Once a case has been adjourned and the accused has not taken advantage of the adjournment to appear here and plead his cause, he would not be entitled to a second adjournment to give him another opportunity to appear here when he neglected to take advantage of the first opportunity. Clause (8), Section 526 was introduced by the amendment of the Criminal Procedure in 1923 (Act 12 of 1923) and has a salutory purpose, so that the case of an accused person who distrusts the Court where he is being tried may not be disposed of by that Court before he has had an opportunity of coming to this Court. The intention of the legislature, however, was not that the provisions of this clause may be abused and the applicant be entitled wantonly to protract trial in the first Court.

3. This application is dismissed.

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