1. These are two companion applications made by the same applicant against two orders of the First Class Magistrate at Chikhli ordering him to pay the costs of adjournments on several occasions in the trial proceeding before the Magistrate. Application No. 10 deals with matter prior in date to No. 9, and may, therefore, be disposed of first.
2. The material facts are that the complainant, one Erachshaw, charged several persons including the applicant, who is accused No. 3, with cheating in respect of a motor car which he had purchased from accused No. 1. The facts of the complaint are not material to the present application, as we have not to go into the merits. The trial proceeded before the First Class Magistrate at Chikhli, and during the progress of the trial, the present applicant fell ill, and was absent on several occasions. On two occasions an adjournment was granted on the ground of his sickness without any conditions, bat on the third occasion a notice was issued to him by the Magistrate to show cause why he should not be ordered to pay the costs not only of one adjournment but of the two previous adjournments, and he was ordered to pay costs of the opponents on October 8, 1931. The order was actually delivered on October 21. This order was passed in consequence of the notice which was issued to the applicant and which is set out in the petition. The notice is dated September 25, and states :
Whereas on your failure to appear before this Court on the 20th day of September 1931 in a case against you by Erachsha Barjorji under Section 417, Indian Penal Code, and two previous bearings you have pub both the parties to unnecessary hardships and expenditure amounting to Rs. 120, one hundred twenty only, and proof of the same has been given before me and duly recorded.
You are hereby called upon to pay the said expenditure of Rs. 120 one hundred twenty only, or to show cause before me within ten daya why payment should not he enforced against you. The terms of the order are : From the explanation and the other papers stated above it is quite clear that the accused Sorabji on account of sheer negligence on his part to inform the Court in time, not on this occasion but on two previous hearings also, that he would not be able to attend the Court has caused a great hardship not only to the Court but to the parties concerned. I, therefore, order that he to pay half the cost of the parties concerned, i.e., Rs. 60, sixty : Section 344, Criminal Procedure Code.
The three occasions which are referred to in this order are August 20, 1931, September 9, 1931, and September 20, 1931. The question is whether the Magistrate under Section 344 of the Code of Criminal Procedure had power to inflict this penalty upon the applicant in respect not only of one day, but of two previous days. That Section 344, which provides for adjournments on such terms as the Court think fit, covers a direction to one of the parties to pay the costs of the adjournment is undisputed, and has been repeatedly held by all the High Courts. An order requiring an accused to pay the costs of an adjournment is one which a Magistrate in his discretion may make tinder this section, and the High Court will not interfere with such an order if not found to be unreasonable under the circumstances of the case. That has been held in Sew Prosad Poddar v. The Corporation of Calcutta (1904) 9 C.W.N. 18 Mathura Prasad v. Basant Lal I.L.R. (1905) All. 207 and In re Abdul Ra-himan I.L.R. (1917) Bom. 254 : 20 Bom. L.R. 124 In In re Abdul Rahiman it was held that if Section 344 is to be regarded as justifying an order as to costs, it can only be where the circumstances are exceptional and where for some reason or another the ordinary everyday method of conducting criminal cases must be departed from. I shall have occasion to refer to this judgment again when dealing with the other application. Taking it, therefore, that the Magistrate was perfectly justified in ordering the accused to pay the costs by reason of his non-appearance on the last day of hearing, I do not think that that power can extend to previous days of hearing in which an adjournment was granted without any conditions. No case which has been quoted to us deals with this point. A reference to the roznama will show that on April 20, 1931, the pleader of accused No. 3 asked for an adjournment as the accused was ill. The case was then adjourned to September 4, 1931, without any order as to costs. On September 4,1931, the case was not taken up, as it had been already adjourned on August 24 to September 9. On September 9, accused No. 3 was absent. He was sick and the pleader for the the accused was also sick, and gave an application to change the date of hearing. The case was adjourned to September 20. Again no order was made regarding costs, On September 20, accused No. 3 was absent. The roznama says that his pleader was asked to inform the accused about the date of hearing, and notice was accordingly issued against him to show cause why the bail bond should not be cancelled. From the medical certificates on record there does not seem to be any doubt that the accused was ill, But the point is that he did not take the trouble to inform the Court that he was not well enough to attend, with the result that the other parties and pleaders had to come, in some cases from Surat, to attend at Chikhli, and were, therefore, put to very considerable expense. So far, therefore, as the order under Section 344 is concerned, I am of opinion that the Magistrate was justified in imposing a penalty for the absence of the accused on September 20, on which day the adjournment was necessitated by the fact of the accused not appearing and apparently furnishing no medical certificate. But I do not think that having granted the previous adjournments without any order as to costs or any other terms, it was open to the Magistrate to impose a penalty in respect of those dates which had already passed, and therefore the order dated October 8 cannot stand as it is. The order was that the accused should pay half the costs presumably on the ground that the total costs were Rs. 120, and it has been contended that as this order applies to three hearings, the costs may be taken to be Rs. 40 a hearing, and, therefore, at the most he should be ordered to pay half the costs of the adjournment of the one day, viz., Rs. 20. I do not, however, see any reason why the accused should not pay the full costs of the other parties for this particular day, and, therefore, the order of October 8, will be modified by directing that the applicant should pay the costs of the other parties for the hearing of September 20, amounting to Rs. 40. The rest of the order is set aside.
3. The companion application, No. 9, refers to the hearing of October 21, 1931, on which day the accused No. 3 appeared and applied for adjournment in order to get a transfer of the case. The adjournment was granted, but he was ordered to pay the costs of the other parties, which were Rs. 90 for the day. On that day it appears that three orders were pronounced against him, one in respect of the costs which were dealt with in the first application, and another with respect to the forfeiture of his bail bond, a matter which is not before us now. So far as regards his application and the order thereon of October 21, the application, which is on record, does not say under what section the accused was applying for a transfer, nor does it say that he was going to move the High Court, and as a matter of fact he subsequently moved the District Magistrate for a transfer. The Magistrate, however, took the application to be one under Section 526, Criminal Procedure Code, and he states in his order that that section applies only when the party informs the Court beforehand, and here the application is vexatious because the accused had ample opportunity at his disposal for the purpose. Section 526 does not say anything of that kind, and under Section 529 Sub-section (8)
If in the course of any inquiry or trial or before the commencement of the hearing of any appeal, the Public Prosecutor, the complainant or the accused notifies to the Court before which the case or appeal is pending his intention to make an application under this section in respect of such case or appeal, the Court shall adjourn the case or postpone the appeal for such a period as will afford a reasonable time for the application to be made and an order to be obtained thereon.
Under Section 526 the Magistrate had no alternative but to adjourn the case. It is replied that this application was not under Section 526, but in the case of any application for transfer it has been held by various High Courts that under Section 344 no order for costs should be made. That will be found in the Bombay case already referred to, In re Abdul Rahiman, in which the application was to the District Magistrate for a transfer, and it was said in the course of the judgment that it is only in peculiar circumstances that an order for costs should be made, and that the case in question was not one of peculiar circumstances, but as ordinary case in which a party applies for a transfer and then applies for an adjournment, and such an adjournment Is commonly granted, and in certain cases, as the law provides, must be granted and no order for costs should be made. If the application had been made under Section 526, as the Magistrate supposed, there was no alternative but to grant the application for adjournment, Although as a matter of fact the application for adjournment does not state whether the application for transfer will be made under s., 526 or Section 528, in view of the Bombay ruling to which I have referred, the costs of that adjournment should not be made payable by the applicant, The order, therefore, of October 21, directing the payment of Rs. 90 by the present applicant to accused No. 4 and the complainant must be set aside, and the rule made absolute.
4. I agree.