GAFURBHAI DAUDBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(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 Ist 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:-

(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-sec. 8 of sec. 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-sec. (8) of sec. 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-sec. (8) of sec. 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.