JUDGMENT

Agarwal, J - This is an application in revision by four persons who were convicted under Section 341, Penal Code, by a Magistrate of the First Class and sentenced to pay a fine of Rs. 50 each. They applied in revision to the Sessions Judge but he refused to interfere. The prosecution case is that one Ram Prasad, a resident of village Goghar went to Gangapur for selling oil. Three of the applicants, Lachhman, Badal and Ram Din told him that he ought not to have come to the village to sell oil to the Mahomedana on account of Hindu-Muslim friction. Badal gave him a slap and took him to the headquarters of the manager of the Tajpur estate. There he was beaten by two sipahis, Bhagwat, applicant and Ram Adhar. Ram Din and Ram Adhar took away his oil and weights. He was then taken to a stable by Ram Din, Lachhman, Badal, Bhagwat and Ram Adhar and beaten there.

2. The charges against these persons were, firstly that on or about 5th February 1941, they at Tajpur police station Kunda were members of an unlawful assembly and in prosecution of the common object of such assembly, that is in beating Ram Prasad committed the offence of rioting and secondly that Lachhman, Bhagwat, Badal and Ram Din wrongfully restrained Ram Prasad and took him to zilla Tajpur where he was beaten. The learned Magistrate acquitted all the accused under Section 147 and convicted the four applicants under Section 341. He acquitted Ram Adhar.

3. It has been argued on behalf of the applicants that the trial was vitiated as the Magistrate contravened the provisions of Section 526(8), Criminal P.C. An application was made by Bhagwat accused on 23rd May 1941 to the trying Magistrate that as he wanted to produce the Magistrate as a defence witness he might transfer the case to some other Court. The Magistrate sent that application to the District Magistrate. The District Magistrate asked the Magistrate whether any of the facts were within his personal knowledge and on his replying in the negative he ordered him to proceed with the case. On 5th July 1941, an application was put in on behalf of another accused that he would put in an application for transfer of the case before the District Magistrate and in case of necessity in the Chief Court and so the proceedings might be adjourned. That application was refused. It was argued that the Magistrate was bound to adjourn the case. Section 526(8), Criminal P.C., runs as follows:

If in any inquiry under Chap. 8 or Chap. 18 or in any trial, any party interested intimates to the Court at any stage before the defence closes its case that he intends to make an application under this section, the Court shall, upon his executing, if so required, a bond without sureties, of an amount not exceeding Rs. 200, that he will make such application within a reasonable time to be fixed by the Court, adjourn the case for such a period as will afford sufficient time for the application to be mad and an order to be obtained thereon:

Provided that nothing herein contained shall require the Court to adjourn the case upon a second or subsequent intimation from the same party, or where an adjournment under this Sub-section has already been obtained by one of several accused, upon a subsequent intimation by any other accused.

4. The view taken by the learned Sessions Judge is that the application dated 5th July 1941, was a second application and therefore the lower Court was justified in rejecting it. The words in the proviso are "subsequent intimation" and not "subsequent application." The intimation referred to in the proviso could only mean that referred to in the Sub-section itself, that is an intimation to the Court that the applicant intends to make an application under this section. No such intimation was given in the application dated 23rd May. The trying Magistrate himself was asked to transfer the case. The trying Magistrate was intimated for the first time on 5th July 1941, that the applicant intended to move an application unde