1. This petition under Section 439, Criminal P.C. is directed against an order dated 6-11-1955 passed by the Additional District Magistrate, Cuttack, directing the petitioner (accused) to pay Rs. 100/- as adjournment costs in a criminal case pending against him. The opposite party (complainant) is a Government servant and had to come from Sambalpur. His witnesses, four in number, who wore in attendance on that day came from Kendrapara, all of them being lawyers practising at Kenprapara.
The allegation of the complainant was that he had spent a sum of Rs. 188/- for getting his witnesses from Kendrapara. The accused was absent on that day and a petition supported by a medical certificate was filed, praying for an adjournment of his case on the ground that he had been suffering from low blood pressure for the last three days and that he had been advised rest in bed for at least one month. The Additional District Magistrate observes that either the accused or his Advocate 'could have Intimated the Court yesterday so that the prosecution witnesses could have been intimated on' the telephone yesterday- not to attend Court today'. This reasoning appears to me to be rather far fetched.
If the accused had been suffering from low blood pressure for the past three days and had been advised rest in bed, I fail to see hew he could have come on the previous day or otherwise intimated to the Court that he was going to ask for adjournment on that day. On the 23rd December the accused appeared and applied to the Court for rescinding the previous order imposing Rs. 100/- as adjournment costs.
In a lengthy order passed on that day the Magistrate says that he had no power to revise his previous order; and apart from his Competency in the matter the Magistrate has held that the accused was mulcted with costs because he had failed to give intimation in time and not because his prayer for adjournment was not reasonable.
2. Section 344, Criminal P.C. empowers the Court to adjourn an enquiry or trial if, from the absence of a witness or any other reasonable cause it becomes necessary so to do. The section does not entitle a Court to impose costs on one side or the other though in particular cases Magistrates do occasionally order costs of the opposite party to be paid. The section is silent though it may be remembered that the Code of Criminal Procedure makes express provision for payment of costs, in certain specified sections, like S. 148.
Moreover, this being a warrant case the enquiry should be held in the interests of the State and the Code provides in Section 544 for payment of the reasonable expenses of the complainant or a witness, by the State. This provision is of course, subject to the rules made by the State Government; and since no such rule has been placed before me the Court is competent to direct that the costs be paid by the State. Mr. Acharya appearing for the accused has also drawn my attention to the case of Mohanlal v. Mohini Mohan AIR 1948 Cal 194 (A) where the same view has been taken.
3. Even otherwise I am of opinion that the order directing the payment of Rs. 100/- as costs in a criminal case is so preposterous that I think it my duty to interfere.
4. Mr. Mohanty for the complainant-oppositeparty points out that four lawyers from Kendraparaappeared and that they are entitled to their professional fees at the rate of Rs. 16/- per day. I antnot aware of any rule or law authorizing paymentof a professional fee to a lawyer summoned to giveevidence in a criminal case like any other citizen.These, witnesses were not summoned to expoundthe law of defamation and give the benefit of theirexpert legal opinion to the Court.No such professional fee could be claimed or,granted simply because the witnesses appearing inthe Court happened to carry on a particular profession. The case of a doctor is, however, altogether,different as he comes to Court only to give his expert medical opinion on the matter in issue. Therecan therefore be no comparison between a lawyercalled to the box and a doctor summoned to giveprofessional opinion.
5. The Magistrate has again and again referred to the delay on the part of the accused in intimating on the previous day about his inability to attend Court on the next day, namely, 5-11-1955. What the Court has got to see in such cases is, not whether by any possible means, the adjournment could have been avoided, but whether on the date to which the case stood posted there was no reasonable cause for adjourning the trial.
6. I am satisfied that in this case there wasreasonable cause for the accused's absence and thatthe order passed by the Additional District Magistrate in these circumstances is perverse. I would accordingly set aside the order of the Magistrateand allow this revision.