SEWA SINGH Vs. STATE

JUDGEMENT

(1.) This and criminal Revisions Nos. 1602 of 1950 and 1603 of 1950 are from judgments of the Sessions Judge of Banaras confirming the convictions and the sentences of the applicant by a First Class Magistrate. In this revision the applicant has been convicted under Section 19 (e), Arms Act, for being in possession of a Kirpan and a sword without a license on 18-12-1949. In Revision no. 1602 the applicant has been convicted under SECTIONS 323 and 324, Penal Code for causing hurt to Mewa Lal with a spear on 18-12-49. In Revision No. 1603 he has been convicted under Sections 352 and 447, Penal Code for committing trespass upon a piece of land and assaulting Musafir Singh on 15-11-49. I have beard these three applications together because an important question of law, common to all, has been raised. The applicant appealed from his conviction to the Sessions Judge of Banaras. The appeals came up for hearing on 9-10-1950, It is alleged on behalf of the applicant that before the arguments commenced the learned Sessions Judge observed that the applicant had been dealt with leniently. The arguments were then heard and concluded and the judgments were reserved for 12.10-50. The applicant moved an application for transfer in this Court on 1010-1960, and an order staying the hearing of the appeals was passed. On October 12, when the learned Sessions Judge was about to deliver judgments, he was informed by the applicant that be bad applied for transfer and a stay order bad been passed. The learned Sessions Judge thereupon reserved the delivery of the judgments to October 24 and warned the applicant that he would deliver them if no stay order were received. By 24-10 1950, no stay order had been received by the learned Sessions Judge. When the appeals were taken up on that date the applicant applied again for adjournment for a week stating that this Court having been closed, be could not obtain a copy of the stay order. The learned Sessions Judge seeing that no stay order had been produced, refused to adjourn the appeals and immediately pronounced the judgments dismissing the appeals. This Court bad passed an order of stay on 10-10-1950, and the question is, what is the effect of the judgments delivered by the learned Sessions Judge inspite of the stay order, which however had not been communicated to him before the judgments were delivered ? It is contended on behalf of the applicant that the stay order became operative from the date on which it was passed, namely, 10-10-1950, while on behalf of the State it is contended that it became operative from the date on which it was communicated that is, after the delivery of the judgments. Section 526, Criminal P. C., just lays down that a High Court may transfer an appeal in certain circumstances ; it does not lay down anything about staying the hearing of an appeal during the pendency of a transfer application. It certainly contains a provision to the effect that when a party intimates to the appellate Court that he intends to make an application for transfer of the appeal, the appellate Court should postpone the appeal

(2.) An order staying proceedings must be communicated to the Court for compliance. The Court has jurisdiction to go on with the appeal. It would lose the jurisdiction only when it is ordered by the High Court not to proceed with the appeal. So long as it does not receive such an order from the High Court, it has got full liberty to proceed with it. An order staying the proceedings is in its very nature incapable of immediate operation, that is, operation at the moment of its being passed. It requires the subordinate Court to refrain from a certain act and the subordinate Court must be informed of ib before it can refrain from doing the act. A stay order is just like a notice which has no effect unless it is received by the person to whom it is given. "Date of a notice" has been interpreted in Associated Dominion Assurance Society Proprietary Ltd. v. Balmford, 81 commonwealth L. R. 161, to mean the date of service of the notice. Williams J. said in that case that

(3.) There is a distinction between an order of stay and an order of transfer. An order of transfer can take immediate effect because nothing is required to be done by the subordinate Court. The transfer is ordered by the High Court and the subordinate Court has simply to take the consequential step of transmitting the record to the other Court. A transfer order is not an order requiring a subordinate Court to do a certain act. Whatever act was to be done has been done by the High Court. Not so in the case of a stay order. Therefore the cases in which it has been held that an order transferring a case takes effect on the date on which it is passed and not on the date when it is commumcated to the Court, are of no guidance in the present case.