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ichab Sheikh Vs. Khirode Kumar Ghose - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1949CriLJ491
Appellantichab Sheikh
RespondentKhirode Kumar Ghose
Cases ReferredBeedha v. Emperor A.I.R.
Excerpt:
- .....certificate. the magistrate adjourned the case but in so doing made the order against which the present rule is directed.2. there is ample autherity for the proposition that the words 'on such terms as it thinks fit' in section 344, criminal p. c., are wide enough to include an order for costs. the question raised in the present rule, however, is whether such an order can be made when the magistrate has no discretion to the refuse an adjourunament here the petitioner was absent and the magistrate was bound to adjourn the case .3. in my judgment to put a party on terms implies that the party is asking for an order which the court has power to refuse, if the petitioner had been present this order could not have been challenged. as, however, he was ab. sent, the magistrate had no.....
Judgment:
ORDER

Henderson, J.

1. This rule has been obtained by one of the accused and is directed against an order calling on him to pay costs of Be. 15 to the complainant on aocount of an order of adjournment made on 3rd December 1943, The petitioner did not attend on that day. His case is that he was ill and his lawyer filed an application for adjournment accompanied by a medical certificate. The Magistrate adjourned the case but in so doing made the order against which the present rule is directed.

2. There is ample autherity for the proposition that the words 'on such terms as it thinks fit' in Section 344, Criminal P. C., are wide enough to include an order for costs. The question raised in the present rule, however, is whether such an order can be made when the Magistrate has no discretion to the refuse an adjourunament Here the Petitioner was absent and the Magistrate was bound to adjourn the case .

3. In my judgment to put a party on terms implies that the party is asking for an order which the Court has power to refuse, If the petitioner had been present this order could not have been challenged. As, however, he was ab. sent, the Magistrate had no discretion in the matter and the petitioner's application for ad-journment, except in so far as it might be regarded as a request not to issue a warrant of arrest against him, was really redundant. The cases of Beedha v. Emperor A.I.R. (9) 1922 all. 184 : (28 Cr. L. j. 243) and Gulab Singh and anr, v. Inder Singh and ors. A.I.R. (21) 1934 Lab. 441 : (36 Cr. L. J. 101), are directly in point and I respectfully agree with them.

4. In his explanation the learned Magistrate states that he made the order not in order to compensate the complainant for the costs which might bothrown away but to coerce the petitioner and ensure his future attendance. All I need say about that is that the learned Magistrate has adopted an improper method in order to attain his object.

5. The rule is accordingly made absolute and the order is set aside.


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