[1] This is an application for transfer of a criminal case comprising charges for murder and other offences, now pending before the Special Sessions Judge at Warangal, A number of prosecution witnesses have already been examined and during the course of further cross-examination of one of the prosecution witnesses, the Advocate for the accused desired to elicit from the witness the names of persons under whom the witness had hitherto worked as a driver. Unfortunately there was disagreement between the Judge and the Advocate with the result that the Advocate withdrew from the case. We wish to point out that this need not have happened. It is not conducive to the dignity of the Bench or the Bar. On the same day (28.11.1950) the accused filed an application requesting for time to engage another lawyer. The Court gave a day's time and posted the case to the next day. It is futile to expect that in a case of murder when already several witnesses have been examined, it is possible for an accused to engage a fresh lawyer and duly instruct him to proceed with the case, within the next 24 hours. The accused could not engage a lawyer and finding that the Court was proceeding with the case in hurry which the accused considered unreasonable, filed an application stating that he would apply to the High Court for transfer of the case and for stay. The Special Judge dismissed the application and posted the case to 30.11.1950, on which day he ordered the accused to put in a list of witnesses to be summoned through the Court. On 2.12.1950, the Judge directed accused 2 to produce witnesses of his own accord. On 5.12.1950, the Court examined a witness on behalf of accused 3 and the case was posted to 12.12.1950. On 11.12.50, the Judge ordered the file to be sent to the High Court in pursuance of the transfer application.

[2] It is rather unfortunate that the learned Special Judge should have considered it fit to proceed with the case when the petitioner had categorically stated that he would apply for transfer. The Special Judge had held that Section 494 (8), Hyderabad Criminal P.C. was not applicable to the transfer application. Section 494(8) corresponds to Section 526 (8), Indian Criminal P.C. before the amendment of 1923 and its translation is reproduced below:

Adjournment on "If, in any criminal case or appeal application under before the commencement of the this section heating, the Public Prosecutor, the complainant or the accused notifies to the Court before which the case or appeal is pending, his intention to make in application under this section in respect of the case, the Court shall exercise the powers of postponement or adjournment given by Section 344 in such a manner as will afford a reasonable time for the application being made and an order being obtained thereon, before the accused is called on for his defence, or, in the ease of an appeal, before the hearing of the appeal.

Apparently the Special Judge came to the conclusion that the transfer application was not filed before the "hearing". A Division Bench of this Court has interpreted "hearing" in Section 494(8) to mean the first opportunity after cause for transfer has arisen Vide - Tulsiram v. Sarkar Ali 29 Deccan L.R. 401 (A). That being the latest view of the High Court, it would have been more appropriate to grant stay. Mr. Gopal Rao Marumkar, the Government Advocate has strenuously argued that it was competent for the learned Judge to have declined to grant the stay, in view of the earlier rulings reported in - 7 Deccan LR 236 (B) and - 14 Deccan LR 191 (C). Technically it may be so, but the more advisable course for the Judge would have been to follow the latest ruling. Further, even if the Judge could decline to order stay of proceedings, yet he should at least have adjourned the case giving a reasonable time to the accused to move the High Court.

[3] On the merits of the application we feel constrained to observe that it is unfortunate that the Special Judg