GOPAL RAM Vs. DHANU RAM

JUDGEMENT

(1.) THESE petitioners (second party) moved this court to set aside the order of the Magistrate dated the 27th of November, 1971 passed under Section 145(6) of the Code of Criminal Procedure, 1898.

(2.) IN this case the Sub -divisional Magistrate transferred the case to Shri M.S. Sinha on the 7th of October, 1971. Thereafter several dates were fixed. Ultimately on the 26th of November, 1971, the second party filed a petition before the Magistrate that they intended to move a petition for transfer before the Sub -divisional Magistrate under Section 528(2) of the Code of Criminal Procedure, 1898. The learned Magistrate was pleased to reject the application for adjournment by the order dated the 26th of November, 1971 and the learned Magistrate delivered the judgement under Section 145(6) on the 27th November, 1971, although he was intimated on 27th of November, 1971 that a petition has been moved before the Sub -divisional Magistrate under Section 528(2) of the Code of Criminal Procedure. The point for consideration is whether the court should grant adjournment if a petition is filed by a party that he intends to move a petition for transfer under Section 528(2) ? The answer is in affirmative. If the party looses confidence upon certain Magistrate or court, it is his duty to pass immediately the adjournment order. I, therefore, hold that in every case where a party intends to move a transfer petition before a higher court either under Section 526 or 529 of the Code of Criminal Procedure, the Magistrate ordinarily should adjourn the matter immediately. Learned counsel for the opposite party contends that technically Section 526(8) does not apply to this case. In my opinion, his contention is correct. But I hold on the basis of the principle that if a party loses confidence upon any court, that court should not try the case and should not deliver the judgement and he should pass adjournment order immediately till the transfer petition is decided by the higher court. In this view of the matter I hold that the impugned judgement is vitiated for not adjourning the case in spite of the fact that a petition was filed before the court that they intended to move a proper petition. Actually a transfer petition was filed on the next date, i.e. the date on which the judgement has been delivered. In this view of the matter I set aside the order of the Magistrate and remand the matter for fresh decision in accordance with law. Let this matter be heard by some other Magistrate other than Shri M.S. Sinha. Petition allowed.