In Re: P.D. Shamdasani

Chagla, C.J.—This is an application in revision against three orders made by the Eeaident Magistrate, First Class, Amalner". The application was made in the first instance to the Sessions Judge, East Khandesh, and he having confirmed these three orders .the petitioner has now come to us.

The petitioner filed a complaint undec Section 282A, Companies Act, Section 409, Penal Code, and Sections 109 and 114 read with B. 34, Penal Code, against the opponents. Opponents no. l are the managing agents and opponents nos, 2 to 9 are-the directors of the Pratap Spinning, Weaving, and Manufacturing Co., Ltd,, Amalner. The case went on against the opponents, and on 10th January 1947, the petitioner, who is a shareholder of the company,, made an application under 13. 347, Criminal P. 0,, that the case of the opponents should be committed to Sessions. On 29th March I947i the learned Magistrate made an order that this application would be argued after the prosecution case had been completed, and on 80th September 1947, the learned Magistrate made an order after the prosecution case was completed and all the evidence had been led that the arguments on the application made by the petitioner on 10th January 1947, would be heard on 26th September 1947, and the learned Magis-trate fixed the exact time when the case would be taken up which was from 1 p, m. to 2-30 p. m. for hearing argument by the complainant and from 2-30 p. m. to 4 0 p. m. for hearing argument by the defence. The order further states that no adjournment on any account would be given to either party as the learned Magistrate was going on leave from 1st October 1947, preparatory to retirement and he wanted to deliver judgment before that date. On 24th September 1947, the petitioner sent a letter by express postal delivery to the learned Magistrate requesting him to grant him a fortnight''s adjournment as he wanted to file the next day before the High Court a transfer application under 8. 526, Cri-ininal-P, 0. On the next day he sent a telegram informing the Magistrate that he had filed such an application. On 26th September 1947, when the case reached before the Magistrate, the petitioner was not present and the learned Magis. trate passed an order rejecting the petitioner''s application for adjournment. That is the first order against which this revision application is filed, and the contention of the petitioner is that as soon as he gave intimation to the learned Magistrate of his intention to make an applioa. tion for transfer it was incumbent upon the learned Magistrate to adjourn the case as re. quired by Section 826 (8), Criminal P. 0. Now the first question that we have to consider is whether there was any intimation to the Court as requir. ed by that sub.aection. In our opinion, the proper way to approach the Court is not by sending letters and telegrams to the presiding officer. The party must either appear in person before the Court or he must make such application as be wishes to make by a properly authorised agent. It would'' be impossible for a Court to carry on its business if it were to accede to applications made by posts or by telegrams. In the first place there would be no guarantee that the letters or telegrams really emanated from the person who "purported to Bend them, and in the second place, a certain amount of formality and solemnity is essential in Courts of law and incur opinion it is very improper for the parties to send letters or telegrams to presiding officers of the Court. Further in our opinion, Section 526 (8) itself contemplates the presence of the party or his advocate when the application for adjournment is made under that sub-section, because that sub-section confers upon the Court a discretion before granting the adjournment to require a bond to be executed by the party making the application in order to ensure that such an application would be made within a reasonable time to be fixed by the Court. Therefore, if the Court was inclined to grant the adjournment on the party executing such a bond, it would have been impossible for the Court to do so if the application was made in the absence of a party or his lawyer. Therefore, in our opinion, as there was no proper intimation given to the Court under 9. 526 (8), the learned Magistrate was not be und to adjourn the case as required by that sub-section. Further, the learned Magistrate had given a clear intimation by his order of 23rd September 1947, that the case would be heard on 26th September 1947, and in no event would an adjournment be granted. The petitioner had notice of that order and it was his duty to be present in Court on that day.

It has been argued by the petitioner that in any event when the Court received the intimation by telegram that the application for transfer had in fact been fited, he should not have proceeded with the case. This argument suffers from the same infirmity as the first one, because here again the Magistrate was not be und to act on information conveyed to him by a telegram purported to have been sent by the petitioner. The position might have been different if the telegram had been sent by the Registrar of this Court or some responsible officer.

Their Lordships considered the merits of the application and concluded:] Under the circumstances we are of the opinion that the learned Magistrate was right in refusing the application for adjournment of the petitioner, and in refusing the application u/s 347, Criminal P. C, and also in passing the order of discharge. The petition, therefore, fails and is dismissed. The rule is, therefore, discharged.