The bond taken from the applicant was not warranted by law and should not have been forfeited. The court clarified that the bond should not be forfeited if the applicant was diligently taking steps necessary prior to moving the High Court for a transfer.

Hidayatullah, J—This is an application for revision of the order passed by the District Magistrate, Bhandara, in criminal Appeal No. 2 of 1946, decided on 8-5-1946. Crown did not put in an appearance. The applicant was a party to a case under Section 145, Criminal P.C. During the pendency of that case he expressed his intention of moving this Court for a transfer. This he did on 19-12-1945 and the Court purporting to act under Section 526(8), Criminal P.C., adjourned the case for a month and ordered the applicant to enter into a bond for Rs. 100 that he would make such an application within one month.

2. The applicant made an application before the District Magistrate which was dismissed. The record was received back on 28-2-1946 when the applicant informed the Court that he wanted to move the High Court for the transfer of the case. The case was accordingly adjourned to 13-3-1946 on which date the applicant informed the Court that he did not wish to make any such application.

3. The learned Magistrate thereupon forfeited the bond and started proceedings for the recovery of the money. The applicant filed an appeal before the District Magistrate who remitted Rs. 75 but upheld the order with regard to the balance. Hence this revision.

4. At the outset Mr. Sen raised a preliminary objection saying that the bond could not be taken from his client as the Court had no power to do so. He referred to Jamir Sheikh v. Murari Mohan, 1929 AIR(Cal) 778 and Loka Mahton v. Kali Singh, 1927 AIR(Pat) 351. In these cases it was held that Section 526(8) did not in terms apply to cases falling under ch. 12, Criminal P.C. The Code was amended after these cases were decided, but the intention still seems to be that Sub-section (8) should not apply to proceedings under Ch. 12 of the Code. This is obvious from the opening words of the Sub-section where inquiries under chs. 8 and 18 are mentioned but not those under Ch. 12. Even if the meaning of the word ''trial'' be held to include an 'inquiry' the words ''before the defence closes its case'' are inappropriate to proceedings under Section 145, Criminal P.C., In my opinion the action of the learned Magistrate in taking a bond from the applicant wag not warranted by law. The learned Magistrate was not bound to adjourn the case and he could not take a bond from the applicant.

5. The learned District Magistrate is in error when he thinks that the bond was forfeited because the High Court was not moved within one month. It is the practice to move District Magistrates before moving the High Court for a transfer, and the bond is not forfeited because the High Court has not been moved within the period allowed, if it can be shown that the applicant was in fact diligently taking steps which were necessary prior to the moving of the High Court: See Mahomed Ramzan v. Emperor, 1940 AIR(Sind) 192. The learned District Magistrate held that this was sufficient to forfeit the bond. In my view it was not. Even if the bond had been properly taken the bond was not forfeited on the date on which the applicant expressed his intention, a second time, of moving the High Court. What the position would have been on the next date when the applicant after getting the case adjourned did not move the Court, is another matter. But in view of what I have said above I do not propose to examine the matter from that angle. The application for revision succeeds. The order forfeiting the bond is set aside and I order the refund of Rs. 25 if it, has been realised from the applicant.

Final Result : Allowed