P (PLP)

A complaint under section 498/109, Indian Penal Code by one Sher Muhammad against 7 persons was sent to Tehsildar Rahimyar Khan exercising the powers of a Magistrate, 2nd Class, by the District Magistrate, Rahimyar Khan for trial. After the prosecution evidence was recorded but before the charge was framed an application was made by Mst. Sehat, one of the accused to the Magistrate under section 526 (8) to stay proceedings as the petitioner wanted to get the case transferred from the Court of that Magistrate. The Magistrate passed no order either accepting objecting it but only filed it and proceeded to frame a charge against the accused. After the charge was framed the same day, the case was adjourned for further proceedings. The accused approached the learned Sessions Judge, Rahimyar Khan on the revisional side requesting him to quash the charge as it was not based on evidence against the petitioners. It was also contended by them that after their petition to stay the proceedings in the Court of the Magistrate .to enable an accused to get the case transferred, the proceedings were all illegal and on that ground too the charge was not sustainable. The learned Sessions judge rejected the petition and failed to consider the legal question raised by the petitioners in their grounds of revision. This is the second petition for revision before this Court. Notice was issued to the complainant who was present on the last hearing but is absent to‑day. The provisions of section 526 (8), as they stand are absolutely imperative in terms. The Magistrate is bound to adjourn the case, on the application for transfer by the accused, when the accused are within their rights, till such period a would afford a reasonable time for the application for transfer the made. Where .the Magistrate without granting the adjourn ment proceeds with the case, the trial becomes illegal and not merely irregular and all subsequent proceedings must therefore be set aside on that ground alone. See 1931 Bomb.

411. Ail similar view was adopted in 1930 All 263 and it was laid down that section 526 (8) embodies a statutory mandate which Courts ough to respect and obey and consequently if subsequent to an application under that section the Magistrate without granting adjournment proceeds with the case, trial becomes illegal and not merely irregular and curable under section

537. In coming to that conclusion the learned judge relied on A. I. R. 1924 All. 533,. A. I. R. 1928 All. 660 and A. I. R. 1928 All.

268. See also 1928 L.

1. It is therefore evident that the proceedings of the Court after the application to stay the proceedings to enabee the accused to get the case transferred from the Court of that Magistrate were illegal. On that ground alone .the charge framed by the Magistrate cannot stand and should be quashed and it is hereby quashed. have not treated it advisable to transfer the case to the' Court of another Magistrate. I would like that the same Magistrate should carefully read the provision of section.526 (8) and afford an opportunity to the accused to move the proper Court for the transfer of the case. The file shall go back to the same Magistrate through the A. D. M. The petitioners are directed to appear in his Court on 20th May, 1950: A. H. Petition accepted.