Mir Iqbal Hussain, J.
1. Aggrieved by the order of the learned Magistrate imposing cost of Rs. 65-10 Np towards the complainant's travelling allowance the petitioner who was the accused before the said Magistrate has preferred this revision petition. Briefly stated the facts leading up to this revision are as follows: In a proceeding arising under the Payment of Wages (Mines) Rules 1956, the petitioner was accused of the offence under Rules 5, 8 etc., of the said Rules. The complainant in the case was the Labour Inspector. On 19.8.1960 the complainant was present but the accused (petitioner) was absent. His advocate produced a medical certificate and prayed for an adjournment. So, the case was adjourned to 19.9.1960. On this date, the complainant was present but the accused was again absent. His advocate filed a memo with a medical certificate praying for an adjournment. The learned Magistrate perhaps, was a, little irritated at the adjournment so prayed for, and in his opinion it was a fit case in which he could put the accused on terms. Accordingly he passed an order under the provisions of Section 344(1A) of the Code of Criminal Procedure calling upon the accused to pay a sum of Rs. 65-10 Np towards the complainant's travelling allowance. Aggrieved by the order the accused has preferred this revision.
2. It is urged by Sri Swamy, the learned advocate for the petitioner that the order awarding costs is illegal and without jurisdiction, It is further urged that in the circumstances of the case the petitioner had reasonable grounds for an adjournment more so because, he was ill and was under medical treatment.
3. The learned Magistrate considers that the reasons advanced for adjournment are not tenable; that the medical certificate is a ruse for a further adjournment and therefore, in his opinion, the accused should be put on terms. So costs were imposed.
4. Section 344(1A) runs as follows:
If from the absence of a witness or any other reasonable 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 adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
5. The proviso to this sub-section is not relevant for a consideration of the present case. A scrutiny of this section indicates that nowhere is it specifically stated that the accused should be put on 'terms'. In fact, the latter portion, of this section which runs as follows:.and may by a warrant remand the accused if in custody is a pointer to the fact that it is not from the accused that costs etc., are to be recovered or in other words, it is not he who is to be put on 'terms'. In case the accused has defaulted there are other steps that are open to the Court under the provisions of the Code of Criminal Procedure to compel his attendance. He could be asked to give security for his presence. Instead of so doing, the learned Magistrate thought that one of the ways to compel the attendance of the accused is by putting him on terms viz., to pay the travelling expenses of the complainant. No doubt the learned Magistrate thought that the accused was unnecessarily taking adjournments. But that is no reason wily action should be taken under the provisions of Section 344(1A) unless of course the said section gave him the option to do so.
6. Substantially I find that the provisions of Section 344(1A) have not undergone any change after the amendment of the Code of Criminal Procedure. There is much force in the argument of Sri Swamy that the section is only renumbered and that renumbering only is the change made by the Amending Act. Otherwise in substance this part of Section 344 remains practically unaltered. It so, the decisions even prior to the amendment bearing on the subject are applicable. One such is the decision of the Calcutta High Court in the case of Mohan Lal Saraji v. Mohini Mohan Das : AIR1948Cal194 , where the adjournment costs awarded against the, accused were considered to be improper.
It was held in that case as follows:
The learned Magistrate has adopted an incorrect method for dealing with the accused's conduct. Adjournment costs are given for non-attendance 'to an accused' by virtue of the terms of Section 344, Criminal P.C. (The underlining here in '') is by me). The moans adopted to ensure and regularise attendance of an accused are to get a bail bond from him under which he undertakes to appear as directed. In this case the accused failed to keep the terms of his bond. The bond is forfeited by his non-appearance. The Magistrate ought to have called upon him to show cause why he should not pay the penalty thereof in any amount up to the full amount of his bond for Rs. 400/-. There is no provision in the Code for enforcing the accused to give the complainant adjournment costs.
This case is followed in a case of the Nagpur High Court in the case of the State v. Laxminarayana AIR 1952 Nag 1. While referring to several cases including the case of Mohanlal : AIR1948Cal194 cited above it is held as follows:
The ratio in these cases is that in the absence of an accused an adjournment is inevitable and while proceedings can be taken against him for the forfeiture of his bail bond, it would not be proper to expose him also to a different penalty.
So also is the decision of the Orissa High Court in the case of Jadumoni Mangaraj v. Sarat Chandra : AIR1956Ori209 where it is held as follow:
Where the accused informed the Court on the date fixed for complainant's evidence that he was unable to attend due to his illness and that the case be adjourned but the Magistrate imposed adjournment costs of Rs. 100/- on the accused on the ground that he should have informed the Court earlier so that the complainant's witnesses who had come from outside might have been informed not to come on the date of hearing, it was held that the order for payment of costs was perverse and should be set aside.
7. Taking into consideration all the facts and circumstances of the case, the orders of the Special First Class Magistrate, Davangere are set aside. This revision is allowed.