M.C. Desai, J.
1. This is an application by the State for revision of an order passed by an Assistant Sessions Judge on 16-4-1959 adjourning the hearing of a criminal appeal filed by the opposite parties against their conviction by a Magistrate for the offences of Sections 147 and 323, I. P. C. This application must be dismissed on two grounds, one a technical ground and the other of lack of merits. The technical ground is that the State should have filed an application for revision of the impugned order in the Court of the Sessions Judge and not come here direct.
It is the well known practice of this Court not to entertain an application for revision unless an application for revision was filed before the Sessions Judge (or the District Magistrate) and was rejected by him. The Sessions Judge had jurisdiction to consider the impugned order of the learned Assistant Sessions Judge and to refer the case to this Court if he considered that the order was invalid or improper and deserved to be set aside. The State Government not having approached the Sessions Judge should not ordinarily be heard; there is no justification for making an exception in their favour.
2. I would have been content with disposing of the application on the technical ground but since it involves an important question of principle and since I have heard arguments on merits I deal with the merits also.
3. The appeal was filed by the opposite parties and on 12-3-1959 the learned Assistant Sessions Judge fixed 16-4-1959 for its hearing and gave notice of the date to the opposite parties counsel and to the District Magistrate on 5-4-1959. When the appeal was called out for hearing on 16-4-1959 the opposite parties' counsel was present and on behalf of the State, a panel lawyer, Sri Gaya Prasad, appeared holding the brief of the District Government counsel and prayed for an adjournment of the appeal on the ground that he had received the brief from the District Government counsel in the morning that very day and had not been able to study it and be ready for arguments.
The learned Assistant Sessions Judge noticed that the District Magistrate had ample notice of the date fixed for the bearing of the appeal, recollected that counsel appearing for the State frequently were not prepared and asked for adjournments, pointed out that there was no improvement in the matter in spite of his having brought it to the notice of the District Magistrate and that the unpreparedness on the part of the State counsel resulted in adjournments giving rise to complaints from the side of appellants and ordered that the appeal would be adjourned to 8-5-1959 on payment by the State of costs amounting to Rs. 25/- to counsel of the opposite parties.
No protest was made against the order imposing the costs by Sri Gaya Prasad; he did not refuse to pay the costs or to accept the adjournment on payment of the costs and did not say that he was prepared to go on with the appeal that very day, It seems that he acquiesced in the order with the result that the appeal stood adjourned. On the next day he appeared before the learned Assistant Sessions Judge and questioned the legality of the order imposing the costs but the learned Assistant Sessions Judge refused to modify his order saying that it had been passed not under Section 344, Cr. P. C. but in exercise of his own inherent powers. Thereafter the instant application was filed by the State.
4. It must be conceded that there is no provision in the Cr. P. C. or elsewhere authorising an appellate Court to impose costs of adjournment of an appeal and that Section 344. Cr. P. C., in terms, does not apply to an appellate Court. But merely because there exists no specific provision in any statute or rule conferring jurisdiction upon an appellate Court to award costs against a party seeking an adjournment of an appeal, it cannot be said that such an order is illegal or without jurisdiction.
The reason is that there is no provision in any statute or rule governing the granting of, or the refusal to grant, an adjournment of an appeal. If there is no provision which entitles an appellate Court to award costs of adjournment of an appeal against the party seeking an adjournment, there is also no provision under which the party can get an adjournment at all. It can never be imagined that an appellate Court has no power to adjourn the hearing of an appeal. The Legislature could never have intended that an appellate Court must at all costs and in all circumstances hear the appeal on the date on which it is fixed for hearing and cannot adjourn it on any ground, even that of illness of the presiding officer or lack of time for disposing of it.
It must be conceded that an appellate Court has power of adjourning the hearing of an appeal on any appropriate ground, as incidental to that of disposing of the appeal and if it has the power of adjourning an appeal as incidental to its power of disposing of the appeal, there is no reason for saying that it has not the further incidental power of imposing terms on the adjournment. If an appellate Court can adjourn an appeal it must follow that it can impose terms also; it would be illogical to demand a specific authority for the power to impose terms, while conceding that no specific authority conferring power to adjourn an appeal is required.
If an appellate Court has power to adjourn an appeal it must necessarily have the power to impose terms or conditions. If a party has not an absolute right to obtain an adjournment of an appeal, it means that the appellate Court has the power to impose terms. An order imposing terms for an adjournment is illegal only if a party has an absolute right to an adjournment. In the absence of a specific provision in the Cr. P. C. or in the rules framed thereunder it cannot be contended that any party to an appeal has an absolute right to an adjournment of the appeal.
With great respect I cannot accept the view taken bv Waliullah, J. in Lakhpat Ram v. State, AIR 1953 All 76. I concede that Section 344, Cr. P. C., does not govern the proceedings before an appellate court hut this concession is not conclusive. Wali-Ullah., J. set aside an order similar to the one passed in the instant case, simply on the ground that Section 344, Cr. P. C., did not apply. He referred to several authorities in which such an order was set aside on the ground that it was not supported by any statutory provision, but, as J pointed out, the absence of a statutory provision, if it did not invalidate the order of adjournment, should not be taken to invalidate the terms or conditions imposed on the adjournment.
5. The order passed by the learned Assistant Sessions Judge simply gave choice to the lawyer appearing for the State either to accept the adjournment on the terms imposed or to be prepared for the disposal of the appeal that very day. If the State lawyer was not prepared to pay the costs be should have informed the learned Assistant Sessions Judge that he did not want the adjournment on those terms and that if the hearing was not adjourned without terms the application for adjournment might be rejected. After having accepted the adjournment, which means the adjournment subject to the terms, he is estopped from contending that the order granting the adjournment is illegal or even improper.
He chose to accept the adjournment on the terms imposed if the imposition of the terms was illegal he should have chosen the other alternative of refusing the adjournment and should have allowed the appeal to be disposed of that very day and should have come up in revision against an adverse order passed in the appeal. If he was illegally deprived of an opportunity of being heard in defence of the appeal and in consequence the appeal was decided adversely against him, he would have a case for revision of the order passed in appeal against him.
6. The application is dismissed.
7. The learned Sessions Judge has added that if the costs are not paid within a week steps will be taken to realise them from the State. I do not understand what process he can issue against the State for realisation of the costs. It seems to me that the State instead of filing this revision application might have followed the example of President Jackson when he observed, with respect to a judgment pronounced by Chief Justice Marshall, of the Supreme Court of United States of America, 'Well, John Marshall has made his decision, now let him enforce it.'