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Nana Ram Kshirsagar and ors. Vs. State of Maharshtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1973CriLJ1665; 1973MhLJ274
AppellantNana Ram Kshirsagar and ors.
RespondentState of Maharshtra
Excerpt:
.....or the prejudice caused to the accused on account of the error in exercise of discretion by the learned magistrate. the learned sessions judge was, however, not inclined to refer the matter although he was not happy with the order passed by the learned magistrate. in this particular case there was a note by the advocate for the accused that he was not well and was therefore unable to attend the court on that day that was a reasonable cause for adjourning the proceedings. sivasubramania kone ilr(1917) 40 mad 1130 :(ib cri lj 612) as well as mathuraprasad v. the learned advocate for the petitioners, saves that though the order might have been a legal order, yet the order ought not to have been passed because the ground given by the accused was sufficient and good. pratap also agrees.....orderbhole, j.1. the three petitioners-accused are aggrieved by an order of adjournment with costs, passed by the judicial magistrate, first class. akkalkot. the accused asked for an adjournment on the ground that their lawyer mr. dhamankar was unable to attend the court because of his illness. the lawyer had also sent a note with his client saying that he was unable to attend the court by undertaking journey from sholapur to akkalkot on that day because he was suffering from flu and therefore he requested the court to adjourn the case for a week. the learned magistrate adjourned the case subject to payment of costs to the prosecution. it is this order which was challenged by the accused before the court of session. sholapur, the learned sessions judge having regard to the authorities.....
Judgment:
ORDER

Bhole, J.

1. The three petitioners-accused are aggrieved by an order of adjournment with costs, passed by the Judicial Magistrate, First Class. Akkalkot. The accused asked for an adjournment on the ground that their lawyer Mr. Dhamankar was unable to attend the Court because of his illness. The lawyer had also sent a note with his client saying that he was unable to attend the Court by undertaking journey from Sholapur to Akkalkot On that day because he was suffering from flu and therefore he requested the Court to adjourn the case for a week. The learned Magistrate adjourned the case subject to Payment of costs to the prosecution. It is this order which was challenged by the accused before the Court of Session. Sholapur, The learned Sessions Judge having regard to the authorities cited before him including an unreported judgment of my learned brother Chandrachud, J. in Criminal Revn. Appln. No. 467 of 1962 delivered on 11-9-1962 (Bom) is of the view that the Magistrate would have been better advised if he had adjourned the case without inflicting the costs. While coming to this conclusion he also observed that he had a good reason to believe that, more than financial loss or the prejudice caused to the accused on account of the error in exercise of discretion by the learned Magistrate. It was the sense of ego of the Counsel which was hurt and which had afforded the grievance. Mr. Apte, the learned advocate, objects to these observations on the ground thai the learned Sessions Judge had not given anv reason for these observations as regards the ego of the Counsel anywhere in his judgment. I wish the learned Sessions Judge had not made these observations because they were not necessary. The learned Sessions Judge was, however, not inclined to refer the matter although he was not happy with the order passed by the learned Magistrate. He therefore, dismissed the revision application. It is this order Dassed by the learned Sessions Judge that is challenged here. The only point that arises here for consideration is whether the order passed by the learned Magistrate adjourning the case subject to the payment of costs to the prosecution witnesses on 1-4-1971 is legal and proper.

2. Mr. Apte, the learned advocate for the petitioners, invites mv attention to Section 14 of the Bombav Pleaders Act, 1920 and says that this section provides that the proceedings before a Court shall be staved for such time as the Court mav deem reasonable if the Pleader employed in anv such proceedings informs that he would be unable to attend on account of his indisposition or anv other reasonable cause. If that is so. under the Bombav Pleaders Act if the Pleader employed in a proceeding is unable to attend the Court on account of his indisposition or anv other reasonable cause the Court has to staved the proceedings for such time as the Court mav deem reasonable. So far as the facts and circumstances of our case are concerned, Mr. Dhamankar was not a Pleader under the Bombay Pleaders Act but an advocate under the Advocates Act, 1961.

3. Therefore in the normal course the provisions of the Bombav Pleaders Act will not apply. There is no Provision similar to Section 14 of the Bombay Pleaders Act in the Advocates Act. 1961. Although such a provision is not there in the Advocates Act. vet the principle of Section 14 of the Bombav Pleaders Act is generally kept in mind whenever a lawyer is unable to attend on account of his indisposition or anv other reasonable cause.

4. The point, therefore, that arises here now is whether the order passed by the learned Magistrate was legal and proper when the advocate for the accused Mr. Dhamankar sent a note with the accused informing that he was unable to attend the Court because he was suffering from flu. Mr. Pratap, the learned Asstt. Govt. Pleader contends here that the order can easily be said to be legal because the learned Magistrate has jurisdiction to pass such an order under Section 344. Criminal Procedure Code. He. how-aver, agrees that the order was not proper in the circumstances of the case. Under Section 344, Criminal P. C. in every inquiry or trial the proceeding shall be held as expeditiously as possible and in particular when the examination of witnesses has once begun the same shall be continued from dav to dav until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following dav to be necessary for the reasons to be recorded. There is, therefore, this power given to the Magistrate to Postpone or adiourn the proceedings for sufficient reasons. It is also provided that if for the absence of a witness or any other cause it becomes necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, the Court may. if it thinks fit, by order in writing, stating, the reasons therefor, from time to time postpone or adiourn the same on such terms as it thinks fit or such time as he considers reasonable and mav by a warrant remand the accused to custody. Therefore the Court may, if it thinks fit adiourn the proceedings on such terms aa it thinks fit. In this Particular case there was a note by the advocate for the accused that he was not well and was therefore unable to attend the court on that day That was a reasonable cause for adjourning the proceedings. The learned Magistrate therefore can adjourn for a reasonable cause and he also has jurisdiction under this section to adiourn the same on such terms as he thinks fit. The words 'as he thinks fit' are interpreted in manav cases and they also include the order to pay costs. The words 'on such terms as he thinks fit' therefore empower the criminal court to grant an adjournment conditionally on payment of costs of adjournment. In this view therefore the criminal Court below is right to adiourn the proceedings conditionally on payment of the costs of adjournment. The order therefore was legal and the Court had jurisdiction to pass such an order.

5. The rulings in Sunnasi Kudumban v. Sivasubramania Kone ilr(1917) 40 Mad 1130 : (IB Cri LJ 612) as well as Mathuraprasad v. Basant Lai. ilr(1906) 28 All 207 : 2 Cri LJ 803 also show that the Magistrate has jurisdiction to pass such an order. In the former the case was taken up by the Magistrate qn a police chargesheet filed on information furnished by a person, who retained a Vakil to represent him at the trial and joined in an application for adjournment made on the around of the Vakil's absence. It was held by the Division Bench of Madras High Court that it was competent for the Magistrate under Section 344 of the Code of Criminal Procedure to grant an adjournment conditional on the payment of costs by such person although he was not a complainant under Section 200 of the Code. In the latter case the Allahabad High Court was considering an adjournment granted by a criminal court under the provisions of Section 344. CrIPC It was held by that Court that a Magistrate in granting an adjournment under the provisions of Section 344 is competent under the same section to order the costs of the dav to be paid by the party in whose favour the order for adjournment was made. Now, therefore, there is no doubt that under Section 344 of the Criminal Procedure Code the learned Magistrate will have the jurisdiction to pass an order to adiourn the proceedings subject to payment of the costs. But the point here is whether the Magistrate could have passed such an order on the ground that the accused's lawyer was ill. Mr. Apte. the learned advocate for the petitioners, saves that though the order might have been a legal order, yet the order ought not to have been passed because the ground given by the accused was sufficient and good. According to him. the impropriety of the order will be seen yery easily if we keep in mind the provisions of Section 14 of the Bombay Pleaders Act. Mr. Pratap also agrees that if there is no other circumstance conflicting with the good ground the court ordinarily should grant an adjournment if the lawyer representing the accused was ill. So far as the circumstances of the instant case are concerned, there is nothing suspicious about the reauest by the lawyer to adiourn the proceedings because he was ill. It does appear that he was suffering from flu. Because he was suffering from flu. therefore it was not possible for him to attend the Court at Akkalkot after coming Sholapur. Because he was unable to come from Sholapur. therefore the accused himself brought a note about his illness to the Court. The ground, therefore, for which the adjournment was granted was suite adequate and sufficient. The order, however. appears to me very unreasonable because the accused could have justifiably been given the adjournment without any order as to Costs. An order for costs is generally made only In those cases where the circumstances are exceptional and where for some reason or other the ordinary everyday method of conducting criminal cases must be departed from. No order, therefore, generally should be made where the adjournment is inevitable because the lawyer representing the accused was ' indisposed. The order in the circumstances of this case was unreasonable. This Court, therefore, will be entitled to interfere with the order because it is unreasonable.

6. Mr. Pratap. the learned Asstt-Govt. Pleader, invites my attention to an unreported decision of this Court in Criminal Revn. Appln. No. 467 of 1962 decided on 11-9-1962 (Bom) by my learned brother Chandrachud J. In that case in similar circumstances the lawyer who was engaged by the petitioner could not attend the Court on that day. The lawyer therefore sent a letter requesting the Court to adjourn the case on account of his illness. The learned Magistrate adjourned the case but directed the petitioner accused that he should pay costs to all the witnesses, whom the prosecution had kept present. While considering this order Chandrachud. J. also thought that the order passed was not proper. He said he was unable to understand the propriety of the order passed by the learned Magistrate suite apart from the question whether he had jurisdiction to pass such an order. The question, Chandrachud, J. observed during the course of his judgment, was not so much about the payment of a small amount but the rights of the members of the bar. Therefore, Chandrachud. J. without deciding the question of jurisdiction held that the order was improper and set it aside. The order with which I am concerned also is more or less an order similar to the one which was for decision in that application. I agree with Mr. Pratap, the learned Asstt. Govt. Pleader, when he says that the learned .Magistrate had jurisdiction but it is also conceded by him that the order was not proper. If that is true, then the order will have to be set aside.

7. I therefore, allow this revision application and set aside the order passed by the learned Magistrate.


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