JUDGMENT Harington, J. - In this case a rule was granted calling on the District Magistrate to show cause why an order binding down the three Petitioners to keep the peace should not be set aside. The substantial grounds on which the rule has been supported are (1) that the Magistrate failed to comply with sec. 526, sub-sec. (8) of the Cr. P. Code and (2) that there were no findings of fact which would warrant the order to bind down Harish Chandra Banerjee and Haripada Samanta. The latter objection is well founded. There is no statement in the judgment that either of the two last-named persons did any act which would justify an order to bind them down. Harish Banerjee is stated in the judgment to have been present when a man named Biseswar told the complainant's assistant "in a friendly way" that he had better get another job as they did not intend to let Mr. Martin work the colliery, and there is no finding at all that anything was ever said or done by Haripada. There was some, though very little, evidence against these two persons. That evidence the Magistrate has admitted to notice and there is nothing in the depositions to show that on any particular or specified occasion either of these two persons took any part in any act tending towards a breach of the peace. 2. The finding as to the third Petitioner, Dhone Kristo, is sufficient. There is a finding that Dhone Kristo with a hand of lathials stopped one of the complainant's carts. 3. The only question is whether as regards the last-named person we are bound to set aside the proceedings on the ground that the Magistrate acted illegally in refusing to grant the accused an adjournment to enable them to move the High Court for a transfer. 4. There is authority for the proposition that the provisions of sec. 526, sub-sec. (8) render it obligatory on a Magistrate to grant a postponement or adjournment so as to allow an application for a transfer to be made. 5. This was held in the case of Queen-Empress v. Gayitri Prosunno Ghosal ILR 15 Cal. 455 (1888). In that case an application for adjournment under sec. 526, sub-sec. (8) was made on November 19th and refused; the accused person was acquitted on November 21st. 5. This was held in the case of Queen-Empress v. Gayitri Prosunno Ghosal ILR 15 Cal. 455 (1888). In that case an application for adjournment under sec. 526, sub-sec. (8) was made on November 19th and refused; the accused person was acquitted on November 21st. It was held that the refusal was illegal and that the proceedings must be set aside as from November 19th. 6. There was, of course, no time for making the application between November 19th and 21st. There could arise therefore no question as to the necessity of postponing the case if the Petitioner was to have the opportunity he asked for moving the High Court. 7. This case was distinguished in the Madras High Court in the case of Queen-Empress v. Virasami ILR 19 Mad. 375 (1896). In that case the trial had been fixed for December 2nd. On November 30th application was made for a postponement under sec. 526, sub-sec. (8) to enable the applicant to apply for a transfer and was refused. The Madras High Court held that the refusal was not illegal. The accused had stated on the 20th of November that he had applied to the High Court for a transfer and on that day asked for an adjournment which was refused; but in fact he had ample time between November 20th and December 2nd to apply for a transfer if he thought fit. It was held therefore that the refusal on the 20th was justified because the accused had time to make the application without any further adjournment; and that there was no reason why on the 30th the Judge should grant the application which he had refused on the 20th. 8. In the case of Sarat Lal Chowdhuri v. The Emperor 6 C.W.N. 251 (1901) the accused person made an application for an adjournment on the morning fixed for the trial in order that he might move the High Court for a transfer. The learned Sessions Judge refused the application on the ground that an adjournment, when the witnesses were present, would involve loss and inconvenience; and he observed that if the applicants really wished to move the High Court they had had ample opportunity to do so,--referring to the time preceding the date when the application was made. 9. The learned Sessions Judge refused the application on the ground that an adjournment, when the witnesses were present, would involve loss and inconvenience; and he observed that if the applicants really wished to move the High Court they had had ample opportunity to do so,--referring to the time preceding the date when the application was made. 9. In that case it was held that the refusal was illegal and that the proceedings which followed that illegal refusal could not be supported, and in the judgment it is laid down that the Court is bound to exercise its powers of postponement without reference to any opportunity that the party may have had of making the application at some earlier time. 10. The effect of these rulings, taken together, appears to be that the party, after he has notified to the lower Courts his intention to apply for a transfer, is entitled to have a reasonable time before the accused is called on for his defence, to enable him to make his application to the High Court for transfer, and this is irrespective of the fact that he might have notified the lower Court at an earlier date and made his application to the High Court before. But the lower Court is not bound to make a special order of postponement or adjournment for the sole purpose of enabling him to make the application for transfer if he has a sufficient opportunity of so doing between the time when he notifies his intention and the time when the accused is called on for defence. 11. In the present case it appears that the application for adjournment was made on August 26th and refused. Witnesses for the complainant were examined and the case was adjourned until September 2nd. The order-sheet does not show that anything was done on September 2nd; but on the 16th of September it was notified that the Defendants were to adduce evidence on the 28th. They did not bring any evidence on that day and the order was made binding them down. 12. We are now asked to set aside this order on the ground that the Magistrate refused to exercise his powers under sec. 344 and grant an adjournment. 13. In our opinion the law is correctly laid down in the case of the Queen-Empress v. Virasami ILR 19 Mad. 375 (1896), and sec. 525, sub-sec. 12. We are now asked to set aside this order on the ground that the Magistrate refused to exercise his powers under sec. 344 and grant an adjournment. 13. In our opinion the law is correctly laid down in the case of the Queen-Empress v. Virasami ILR 19 Mad. 375 (1896), and sec. 525, sub-sec. (8) does not make it obligatory to grant a special adjournment irrespective of whether the party has a reasonable time to make his application without such an adjournment : but makes it obligatory only if it is necessary to enable the Petitioner under sec. 526 to make his application before the accused is called on for his defence. 14. In the present case there was in fact an adjournment for a week, but no effort was made to move the High Court during that interval. Moreover as late as the 16th of September, three weeks after the accused had notified their intention to move the High Court, they were warned that they would be called on to make their defence on the 28th. Now if it be assumed that there was not time to move the High Court between August 26th and September 2nd (and we do not think such an assumption would be justified) there was ample time between August 26th and September 28th and during that time the Defendants abstained from moving the High Court and they are unable to give any reason why they so abstained. 15. It was contended by the learned counsel who appeared in support of the rule that the order refusing to postpone the case on the 26th August was necessarily bad in itself, because under the provisions of sec. 526, sub-sec. (8) the Magistrate was bound to stay his hand altogether immediately on the accused persons notifying their intention to apply for a transfer and it was therefore illegal for him to proceed with the examination of the complainant's witnesses. 16. We are clearly of opinion that this contention is not supported by the terms of sec. 526, sub-sec. 526, sub-sec. (8) the Magistrate was bound to stay his hand altogether immediately on the accused persons notifying their intention to apply for a transfer and it was therefore illegal for him to proceed with the examination of the complainant's witnesses. 16. We are clearly of opinion that this contention is not supported by the terms of sec. 526, sub-sec. (8), which requires only that a reasonable time shall be afforded for the application for postponement being made and an order being obtained thereon "before the accused is called on for his defence." It was therefore competent to the Magistrate before granting an adjournment to proceed with the case up to the point at which the accused would be called on for their defence. 17. In our opinion we ought not to interfere with the order as to Dhone Kristo for two reasons: First, because the accused had a reasonable time for making the application for transfer to the High Court and obtaining an order thereon before they were called on for their defence, and, secondly, because they chose to abstain from making the application when they had the opportunity of doing so. The Court therefore should not exercise its revisional powers in their favour on this point. The result is that we make the rule absolute as to Harish Chandra Banerjee and Haripada Samanta and discharge it as regards Dhone Kristo.