SHAIK BIKARI Vs. STATE

JUDGEMENT

(1.) In these Crl. Revision Cases, the petitioner prays that the order of the Sessions Judge, Guntur, dismissing the petitions for transfer, be set aside and the case Nos. 30 and 31 of 1970 on the file of the Judicial First Class Magistrate, Sattenapalli be transferred to some other Magistrate's Court.

(2.) The facts leading to the filing of these Revision Cases are, that the petitioner and some others have been charge sheeted for offences under Section 324, 325 and 326 read with Section 34 I. P C. One of the accused (the petitioner) filed a petition on 8-7-1970 been fore the First Class Magistrate, Sattenapalli under Section 526 (8) Cr. P. C to the effect that he had decided to apply for transfer of the case, to the District and Sessions Judge, Guntur and that his case be adjourned for 14 days without trial, to enable him to file such transfer application. On the same day the Magistrate refused the request on the ground that no application for transfer was filed Against that order the accused filed a petition on 14-7-1970 before the District and Sessions Judge, Guntur under Section 528 Cr, P. C. These petitions were dismissed by the learned Sessions Judgel Hence these revision cases before this court.

(3.) The main ground on which the legalftv of the order of the Sessions Judge, were challenged, was that under Section 526 (8) Cr. P. C. the Magistrate was bound to give an adjournment when the accused prayed for it, on the ground that be was making an application to the superior court for transfer of the case. Since section 526 (8) is mandatory, the refusal to adjourn the case, vitiated the proceedings Such proceedings after refusal of adjournment have been held to be illegal by several courts. They are not merely irregular but illegal and the irregularity cannot be cured under Section 537 Cr. P. C, The refusal of such a request for adjournment, contrary to the mandatory provisions of law, is a sufficient ground in itself for transfer, In support of the above arguments the learned counsel appearing for the petitioner Mr, Sharma relled upon the following decisions : - Nathan v. Emperor (I) in Re Pakira Puraji (2) Baliran Kashinath v. Mt. Marubai(3) Gokul Prasad v. Emperor(4) As against the above arguments, the learned Advocate appearing for the Public Prosecutor, contended that the transfer application cannot be entertained since it has not been filed as required by section 526 Cr. P, C. accompanied by an affidavit, Before dealing with the question in issue, it is advantageous to reproduce the relevant portion of section 526 (8) Cr. P. C.