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1. The two appeals to which this Revision Petition relates have not been heard upon the merits, as the Sessions Judge has ordered a re-trial of the case in consequence of what he regards as illegalities in the original trial.
2. On 26th April, 1928, the trying Magistrate refused to adjourn the case when the vakil for the accused intimated his intention of making an application to the High Court for a transfer. The learned Sessions Judge is of opinion that the Magistrate in refusing an adjournment on that occasion acted in violation of Section 526 (8), Code of Criminal Procedure.
3. The learned Public Prosecutor contends that the intimation of intention to apply for a transfer was not made in the course of the trial, which had been closed before it was made, though judgment had not then been pronounced, and therefore the Magistrate in refusing to adjourn the case did not contravene the provisions of Section 526 (8). It appears that before the Sessions Judge the Public Prosecutor of Ramnad conceded that after refusing to adjourn the case the Magistrate heard the arguments in the case before he pronounced judgment. If that were so, the trial would not have been over before the intimation of intention to apply for a transfer was made. In an affidavit in support of an application to this Court for bail (Cr.M.P. No. 288 of 1928) the vakil for the accused asserted that some arguments in the case were heard by the Magistrate after he refused the adjournment and before he pronounced judgment. But the Magistrate himself has stated that he heard no arguments in the case after refusing the adjournment. His diary shows that, when the judgment was about to be pronounced, an application under Section 526 was made and dismissed and that he then pronounced judgment. His order on the application itself shows that the application was presented when the judgment was about to be pronounced. The Prosecuting Sub-Inspector of Police who conducted the prosecution has made an affidavit that no arguments were heard after the application for adjournment was made. I am informed that the Local Public Prosecutor who made the “concession” before the Sessions Judge had not appeared at any earlier stage of the case and was not instructed to make any such “concession.” I must accept the Magistrate’s account of what happened before him, which, as I have mentioned, is supported by the record of the case, and find that no argument was heard after the application for adjournment was made but that the case had been closed before that application was made. It has been contended for the accused that nevertheless an application made before judgment was actually pronounced would be made in the course of the trial within the meaning of Section 526 on the ground that the trial includes the pronouncing of judgment. But Sections 366 and 497 of the Code make it clear that a trial, as that word is used in the Code, is over before the judgment is pronounced and that the pronouncing of judgment is no part of the trial. I find, therefore, that the intimation of intention to apply for a transfer and the application for adjournment for that purpose on 26th April, 1928 were not made in the course of the trial and that the Magistrate’s refusal to adjourn the case did not violate provisions of Section 526 (8) and did not invalidate the trial.