RAOTMAL Vs. SAMPAT

JUDGEMENT

(1.) THIS is an application for revision of the order of the Tahsildar and Magistrate, 1st Class, Khamgaon, dated 27th July 1928 ordering summons to issue to the prosecution witnesses and fixing the criminal case for hearing on 11th August 1928. It appears that the First Subordinate Judge, 1st Class, Khamgaon, made a complaint against the appellant Raotmal for an offence of perjury under Section 193, I.P.C. and forwarded that complaint under Section 476, Criminal P.C. for trial to the Special Magistrate 1st Class, Khamgaon. That complaint was received on 9th May 1928. The present applicant whose suit was dismissed by the First Subordinate Judge, 1st Class, Khamgaon, filed an appeal against that decree to this Court. Admittedly the criminal complaint arose out of the suit and he, therefore, on 21st June 1928 made an application to the criminal Court that, as he had appealed to the High Court and the appeal was fixed for hearing on 18th January 1929, the criminal trial should be stayed pending the decision of that appeal. The Magistrate, therefore, adjourned the hearing of the case to 23rd January 1929 and ordered the accused to be present on that date, binding him over for a sum of Rs. 500. The applicant, however, had previously applied to this Court for stay of the proceedings on 14th June and Kinkhede, A.J.C. passed an order the same date to the following effect. In the meantime a copy of the above order be sent to the criminal Court directing it to stay its hand pending receipt of final orders.

(2.) THE application was fixed for hearing and came up for hearing before-Hallifax, A.J.C., on 12th July 1928. On that date, the following order was recorded:

(3.) THE applicant then made an application for revision to the Sessions Judge, Akola, but that application was dismissed on 21st August. A further application was then made to this Court. It seems to me, however, that there is very little force in the application. It is true that the Magistrate did originally fix the hearing of the case for 23rd January 1929, but he appears to have done so under a mistake, whether it was a mistake induced by the applicant or not. The order passed by Kinkhede, A.J.C. on 14th June was that the proceedings should be stayed until final orders had been passed on the application for stay and not till the decision of the civil appeal fixed for hearing in January 1929. That order does not seem to have been communicated to the Magistrate when he passed the order on 21st June, but either a misrepresentation was made by the applicant or the Magistrate thought that he should grant stay until the decision of the appeal. Then again, the applicant appears to have made a similar mistake when he appeared before Hallifax, A.J.C. oh 14th July. There it is stated that the Magistrate had granted stay and that statement being accepted the application for stay in this Court was rejected. The learned advocate for the applicant contends that he would have pressed the application and would not have allowed the application to have been rejected in that way had he not been under the impression that the stay had been granted by the Magistrate pending the decision of the appeal. It appears, however, that Hallifax, A.J.C., did not think it necessary to grant the stay; he believed that the stay had been granted and he did not wish to interfere.