ALI HUSAIN KHAN Vs. STATE

JUDGEMENT

(1.) THE applicant had been ordered to pay Rs. 200 penalty on account of forfeiture of a bond executed by him under Section 526(8) of the Code of Criminal Procedure.

(2.) THE applicant was being tried in the Court of a Magistrate for the offence of Section 5 of the Influx from Pakistan (Control) Act, 1949. During the pendency of the case he made an application under Section 526(8) of the Code of Criminal Procedure stating that he wanted to apply to this Court for transfer of the case from the Magistrate's Court. The Magistrate required him to execute a bond of Rs. 200 undertaking to make an application in this Court within twenty days. On the applicant's executing such a bond the Magistrate adjourned the case under Section 526(8). Admittedly the applicant did not apply to this Court for transfer of the case within the period of twenty days. Instead he applied, for transfer of the case to the District Magistrate under Section 528 within the period of twenty days. The District Magistrate dismissed his application and then after the expiry of twenty days, he applied to this Court for transfer. When the Magistrate discovered that he had not applied to this Court within twenty days for transfer of the case, he took proceedings under Section 514 for forfeiture of the bond. He forfeited the bond and directed the applicant to pay the whole amount of the bond. On appeal the amount was reduced to Rs. 100 by the Sessions Judge.

(3.) IT was next contended that it was incumbent upon the applicant under the practice or this Court to apply to the District Magistrate for transfer of the case first and that he applied to this Court for transfer when his application for transfer was rejected by the District Magistrate. It is true that before this Court entertains an application for transfer of a case under Section 526 it requires that the District Magistrate should have been previously moved to exercise his powers of transfer under Section 528. But it has nothing to do with the question of forfeiture of the bond actually executed by the applicant. He executed the bond, undertaking to make an application under Section 526, that is, an application to this Court within twenty days, and the simple question is whether he fulfilled the undertaking of the bond. If he did not intend to, or could not, apply to this Court within the time allowed by the Court, he should not have executed the bond at all. If he failed to fulfil the undertaking of the bond he would be liable to pay the penalty, whatever may be the reason for his failure to fulfil it. Certainly the practice of this Court that he should first approach the District Magistrate would not have prevented his fulfilling the undertaking given under the bond and could not justify his not making an application in this Court within the period stipulated by him. He could move the District Magistrate and without awaiting for his orders move this Court within the time allowed and inform it that he moved it without waiting for the District Magistrate's orders because he was bound by the bond. A person who wants to apply for transfer of a case is not entitled to have the proceedings adjourned while he is approaching the District Magistrate for exercise of his powers of transfer under Section 528; he is entitled to an adjournment only if he wants to make an application to a High Court for transfer under Section 526. It follows that a person who wants to make an application for transfer to a High Court must, before asking for an adjournment of the case under Section 526(8) make an application to the District Magistrate for exercise of his powers under Section 528. He is not entitled under Section 526(8) an adjournment itself to enable him to make an application to the District Magistrate; at the most he may make an application under Section 344 for adjournment. In the present case the applicant applied for adjournment not under Section 344 but under Section 526(8). It was his fault that he applied for adjournment under Section 526(8) without having previously moved the District Magistrate under Section 528. He was expressly given time to move this Court within twenty days and when he failed to do it, he became liable to pay the full amount of the bond.