1. This is a rule against an order dated 5th July 1947, directing an accused to pay to the complainant opposite party Rs. 50 as adjournment costs.
2. We may note that although when the rule was issued care was taken to make it clear that only proceedings in connection with the matter of Rs. 50 should be stayed, unfortunately the order also directed the record to be called for. The result is that over this comparatively trivial matter a pending case has been held up for about three months.
3. The accused was being tried on a charge of cheating, and as it is not uncommon in such cases he has been giving some trouble to the Court in the matter of his attendance. He was absent on 28th March, sent a telegram and the surety filed a petition with the telegram saying that the accused was ill. He appeared on 30th April, 23rd May, and again failed to appear on 19th June. A petition was filed with a medical certificate which the Magistrate apparently was not disposed to accept and he directed the accused to file a certificate from the Civil Surgeon. In case of the failure of the accused to file such a certificate he was to pay adjournment costs of Rs. 50. On 5th July it was noted that the accused had not filed the certificate and instead he filed a petition stating that a certificate from the Civil Surgeon could not be filed as he was not under the treatment of the Civil Surgeon and that the Civil Surgeon's office was at different place from where the accused resided. The Magistrate accordingly directed the accused to pay Rs. 50 to the complainant as adjournment costs. It is these orders which are now challenged before us.
4. 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 means 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. I 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: Ichab Sheikh v. Khirode Kumar ('44) 48 C.W.N. 684. If the accused is absent the Court is bound tof give an adjournment.
5. The result is that we must set aside the order complained of. There is nothing in our order to prevent the Magistrate if he so wishes to proceed properly in the matter of the accused's bond.
6. We may add that the requirement of a certificate from a Civil Surgeon seems in the circumstances to be rather a curious one because the question of fact is whether the accused was really unable to attend the Court owing to illness on the day in question. Quite probably no responsible Civil Surgeon would give any certificate in the circumstances. It would not be possible for him to certify seeing a man at a later day whether or not he was in a fit condition on some day previous to attend the Court. At any rate this would not ordinarily be the case unless in a case of a very serious illness to the person concerned. It is for the accused, as we have said, to satisfy the Court that he was really unable to attend the Court on the date in question and it is for the Court to say whether it is satisfied or not by such proof as the accused may be able to give to explain his absence on that date, and if not it may make the accused pay an appropriate penalty on the bond. The rule is accordingly made absolute. Let the records be sent down at once.