Debabrata Mookerjee, J.
1. This Rule raises the question whether an order for costs may properly be made against an accused in terms of Section 344 of the Code of Criminal Procedure on the ground of wilful absence from court.
2. On the 7th of June, 1960 the complainant opposite party Was in attendance in court with his witnesses when on behalf of the accused petitioner an application supported by a medical certificate was filed, stating that he had been suffering from illness which prevented him from attending court that day; a prayer was, accordingly, made for adjournment of the case. The petition was challenged on behalf of the opposite party and it was asserted that the petitioner had deliberately kept away from court and procured a false medical certificate in support of his pretended illness. It was prayed on behalf of the opposite party that the petitioner might be directed to be examined by a competent doctor, and the fees for such examination were at once deposited in court. The Magistrate allowed the prayer and directed the medical officer-in-charge of the local hospital to examine the petitioner that day and report to court the result of his examination on the 14th June, 1960, to which date the case was adjourned. On the 14th, the Magistrate considered the medical report which did not disclose any valid ground of absence of the accused on the 7th. The Magistrate then directed the petitioner to pay Rs. 30/- as adjournment costs to the complainant opposite party.
3. Being dissatisfied with the order, the petitioner applied to the Sessions Judge for a reference to this court with the recommendation that the order of the Magistrate be set aside. The learned Judge declined to interfere when the petitioner applied to this court and obtained the present Rule.
4. The only question which arises for consideration is whether the Magistrate acted within his powers under Section 344 of the Code of Criminal Procedure in awarding costs to the complainant opposite party. Section 344(1A) is in these words :--
'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 lit, 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. It is unnecessary to set out the proviso for purposes of the present Rule. The main provision contained in Sub-section 1A is plain that for any reasonable cause the court may adjourn an enquiry or trial on such terms as it thinks fit. The question is whether the Magistrate in this case could be said to have acted within his powers by directing payment of costs for a date on which the case could not have been heard on account of the absence of the accused. This question arose in the case of Ichab Sheikh v. Khirode Kumar, ILR (1945) 1 Cal 481: (AIR 1949 Cal 254), where Henderson, J. explained the true import of the expression putting a party on terms. The learned Judge said:--
'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 absent, the Magistrate had no discretion in the matter and the petitioner's application for adjournment, 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, AIR 1922 All 184 (1) and Gulab Singh v. Inder Singh, AIR 1934 Lah 441 are directly in point and I respectfully agree with them.'
6. The decision proceeds on the footing that the Magistrate had no discretion in the matter since he had to adjourn; it was almost a compelled decision since the case could not be proceeded with in the absence of the accused. But is the position changed by reason of the amended provisions or Section 540A? That section is in these words:--
Section 540A (1)--At any stage of an enquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance o the accused before the Court is not necessary in the interests of justice, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
Section 540A(2)--If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit, and for reasons to be recorded by him either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.
7. This is a provision which permits departure from the general rule requiring a proceeding against accused to be always conducted in his presence. Certain conditions have to be fulfilled before an inquiry or trial can be held in his absence. It is only when the accused is represented by a pleader and the court is satisfied for reasons to be recorded that the personal attendance of the accused is not necessary in the interests of justice that the case may be proceeded with in his absence. Obviously the learned Magistrate did not think that the case fell within Section 540A with the result that he felt obliged to adjourn the trial. That being the position, the decision cited above still holds good and governs the case.
8. The learned Judge seems to have thought that the order of costs made by the Magistrate may bs taken as being in the nature of compensatory costs. I must say at once that the Code of Criminal Procedure does not provide for imposition of such costs. The learned Judge seems to have realised that in the absence of any express provision in that behalf no order in the nature of compensatory costs can be awarded; but he thought Section 561A of the Code gave the Magistrate jurisdiction to make any order to secure the ends of justice and prevent abuse of the process of the Court, Section 561A is, in my view, wholly inapplicable, since that section saves only the inherent power of the High Court. No inherent power can be spelt out for a court of inferior criminal jurisdiction. Assuming for argument's sake, that an inferior criminal court can act upon the principles embodied in that section, it seems clear that that the section gives no new powers but merely safeguards existing powers possessed by the High Court. That indeed was the view expressed by the Judicial Committee in the case of Jairam Das v. Emperor .
9. I must therefore hold that the court has the power for a reasonable cause to put the accused on terms and order him to pay costs provided he is present in court; but if the accused is not present and the Magistrate feels obliged to adjourn the trial, there will be no power to award costs since the decision to adjourn is a compelled decision with no scope for the use of the court's discretion.
10. It may be unfortunate that no provision exists in the Code to cover a case like the present; but that can be no ground for creating fancied powers where none exists. It seems to me, however, that the legislature was not completely oblivious of the necessity of compensating a complainant who has been harassed by an accused. Section 545 contemplates a case where the complainant may be compensated. When a fine forms part of the sentence, the court may direct the whole or a part of it to be applied in defraying expenses properly incurred in prosecution of the accused or in payment of compensation for loss or injury caused by the offence. But, that obviously presupposes a conviction entailing a fine. There is no provision in the Code which enables the Magistrate to make an order for payment of costs during the pendency of a proceeding except Section 344 and that section is limited by its own words to a case where there is scope for the use of the court's discretion to adjourn or refuse to adjourn. Where as here, there is no such scope, the court cannot allow costs. That seems to me to be the true position.
11. The Rule is, accordingly, made absolute and the order of the Magistrate directing payment of costs to the opposite party is set aside.