1. HAMOODUR RAHMAN, C. J.-This petition was filed to call in question an order of a learned Single Judge of the High Court of Lahore dismissing an application under section 526 of the Criminal Procedure Code for the following reason : "The petitioner is directed to move the District Magistrate under section 528, Cr. P. C. In the first instance and allowing him a fortnight for the purpose Stay the proceedings till 22nd July 1971, by which date he may if so advised seek further orders from him in this respect, dismissed."
2. Learned counsel appearing in support of the petition contends that the reason given by the learned Judge for dismissing his application was not valid in law and amounted to a refusal to exercise a jurisdiction vested in him by law.
3. As the question raised is a question of law of some importance, we directed that notice should issue to the Advocate-General, Punjab and that this petition should be heard as an appeal on the present records.
4. We have now heard the learned counsel appearing in support of the appeal as also the learned Additional Advocate-General, Punjab.
5. Learned counsel appearing in support of the appeal contends that the jurisdiction given to the High Court under section 526, Cr. P. C. Is not a concurrent jurisdiction. In fact, reading the provisions of section 525, Cr. P. C. As a whole, it is clear that this jurisdiction is the exclusive jurisdiction of the High Court and it is for this reason that it has been provided by subsection (8) of that section that as soon as a person intimates to the High Court holding the enquiry or trial that he intends to make an application under this section, that Court is bound in law to adjourn the case for a reasonable period of time to enable the party concerned to move the High Court upon his furnishing a bond of an amount not exceeding Rs. 200. In the circumstances, if the application is not made to the High Court, the party obtaining the adjourn--ment is likely to forfeit his bond. To force him, therefore, to move to the District Magistrate first would amount to forcing him to act contrary to the intention of law.
6. Furthermore, section 528, Cr. P. C. Does not give any general power to the Sessions Judge to transfer a case from one Court to another. He can only withdraw or recall a case which he may have made over to an Assistant Sessions Judge or an Additional Sessions Judge. Similarly, the District Magistrate or Sub---Divisional Magistrate can also withdraw or recall only a case which he may have made over to a Magistrate subordinate to him. A case which has not been so made over cannot either be withdrawn or recalled either by the Sessions Judge or the District Magistrate under section 528, Cr. P. C.
7. Learned Counsel appearing in support of the appeal also points out that the High Court has in the present case omitted to notice that on a previous occasion this very case had been transferred- by an order passed by the High Court itself in Criminal Miscellaneous No. 7609 of 1970 from the Court of a Magistrate of the -First Class at Samundari to the Tehsildar, a Second Class Magistrate, in the same Tehsil. On this ground too it was not possible for the appellant to move either the District Magistrate or the Sessions Judge, for they would, out of deference to the High-Court's order, have declined to interfere in the matter.
8. In support of this contention, the learned counsel for the appellant has relied on a Full Bench decision of the Bombay High Court in the Case of In re : P. D. Shaindasani (AIR 1930 Mom. 480). The learned Chief Justice of that High Court there pointed out that after the introduction of subsection
(8) in section 526 of the Criminal Procedure Code by the Code of Criminal Procedure (Amendment) Act, 1923 (Act XVIII of 1923) it becomes impera--tive on the Magistrate to grant an adjournment .If either the complainant or the accused signifies his intention to apply to the High Court for a transfer. His right to move the High Court cannot, therefore, be excluded by requiring him first to move the District Magistrate or the Sessions Judge.
9. The decision in the case of In re : Fonseca (6 Bom. L R 480), which was given in the year 1904, was held to be inapplicable after the introduction of the new subsection (8) in section 526 of the Criminal Procedure Code.
10. As against this, the learned Advocate-General has relied on the judgment of a learned Single Judge of the Lahore High Court in the case of Ghulam Nabi v. Janiala (AIR 1923 Lah. 685) which gave no reason of its own but merely followed the decision of the Bombay High Court In re : Fonseca's case. This is also a decision given in 1923 before the amendment of subsection (8) of the Code of Criminal Procedure. The learned Additional Advocate-General has also relied on the provisions of Rule 12 of Chapter 26 of Volume III of the Lahore High Court Rules and Orders wherein it has been observed : "Applications for transfer are not, as a rule, entertained by the High Court unless the District Magistrate has been first moved in the matter and the application for transfer has been rejected by him."
11. It appears that there was some conflict of opinion between the High Courts in British India on this question. Notwithstanding the view expressed by Martin, C. J., of the Bombay High Court in the case of In re : P. D. Shamdasani, the Lahore and Allahabad High Courts and the Oudh Chief Court still took the view that the High Court would not, as a matter of practice, entertain an application for transfer unless the District Magistrate or the Sessions Judge, as the case may be; had been moved in the first instance, upon the general principle that the High Court should not be unnecessarily burdened with cases where only a transfer was sought within the Sessions Division or the District.
12. Some High Courts also took the view that, even though the jurisdiction was not concurrent, they would still like to have the advantage of the views of the District Magistrate or the Sessions Judge, as the case may be, before dealing with the matter.
13. This dispute, so far as our neighbouring country of India is concerned, has now been settled by Legislation in the year 1955 ; vide Code of Criminal Procedure (Amendment) Act, 1955 (Act XXVI of 1955). The Indian Legislature has now introduced a new subsection (l-A) in section 526 which reads as follows :- "Notwithstanding anything contained in subsection (1), no application shall lie to the High Court for the exercise of its powers under the said subsection for transferring any case from one criminal Court to another criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him."
14. This Act has also amended subsection (8) of section 526 by providing therein that even when an intention to move an application under section 528, Cr. P. C. Is manifested, the trial Court or the Enquiry Court, as the case may be, is bound to adjourn the case for a reasonable period in order to afford sufficient time for the making of the application.
15. This act has further added subsection (1-C) in section 528 to make the following consequential provision :- "Any Sessions Judge, on an application made to him in this behalf, may, if he is of opinion that it is expedient for the ends of justice, order that any particular case be transferred from one criminal Court to another criminal Court in the same sessions Division."
16. The changes introduced in India seem to indicate that the Legislature there has accepted the view that a party seeking to approach the High Court should first exhaust the remedies, if any available, in the subordinate Courts.
17. Learned counsel appearing for the appellant, however, contends that the fact that no such amendment has so far been made in the law in our own country tends to support his conten--tion that the right given by section 526, Cr. P. C. Cannot be denied merely on the ground that an application for a transfer within the sessions division or the district could have been made under section 528 of the Criminal Procedure Code.
18. It appears to us that there is a great deal of force in this contention. The right to move the High Court by section 526, Cr. P. C. Is an independent right which is not controlled by any condition other than those mentioned in the section itself, namely, that he should furnish a bond in proof of his bona fides before the trial Court or the Enquiry Court as the case. 1 he Enquiry Court or the trial Court would, in such a circumstance, be bound to grant the adjournment prayed for; but if the application is not made to the High Court as intimated the party would be liable to forfeit his bond.
19. This is the penalty provided in the Statute itself for not making the proposed application in the High Court. This seems to indicate that once such an intimation has been given to the trial Court or the Enquiry Court and the bond has been furnished, it becomes incumbent upon the party giving such an intimation to move the High Court and to have his matter decided by the High Court on merits.
20. In the present case, it seems to us that the learned Judge in the High Court has overlooked not only this legal aspect but also two other important facts; namely, (1) that in the application for transfer the prayer was for the transfer of the case to some other District and not for a transfer within the same District or within the same sessions division and as such an application under section 528, Cr.
21. P. C. Could not have been made for such a transfer and (2) that in Criminal Miscellaneous Case No. 7609 of 1970 the same learned Judge of the High Court had himself earlier ordered the case to be transferred from the Magistrate who was then trying it to the local Tehsildar who was a Second Class Magistrate. In this view of the matter, it is difficult to appreciate how either the Sessions Judge or the District Magistrate would have had the jurisdiction to countermand this order.
22. For all these reasons, we are of the opinion that the reason given by the learned Judge for dismissing the application under section 526 of the Criminal Procedure Code was not a valid reason. His order is, accordingly, set aside and the application is remanded back to him for disposal in accordance with law.
23. Order acecrdingly.