1. The petitioners who are accused in a case under Section 323, I. P. C., pray for setting aside an order of the trial Court discharging prosecution witnesses before their cross-examination and, in the alternative, for transfer of the case to some other Court.
2. On the 30th December, 1955, the date fixed for the appearance of the accused, petitioner Benoy Rakshit was present but Bholanath and Satya Kinkar were absent on the ground of illness. For each of the absentee accused was filed a medical certificate with a prayer for an adjournment. Bholanath was said to be suffering from pneumonia and Satya Kinkar was alleged to have been suffering from typhoid. The complainant's version was that both the accused were hale and hearty, and the learned Magistrate was of the view that the physicians who gave the certificates were not reliable. Why the learned Magistrate regarded the physicians as unreliable we cannot say. The learned Magistrate adjourned the case to 13th January, 1956, but awarded Rs.25/- as adjournment costs against the accused. On the next date, viz., 13th January, 1956, all the petitioners were absent. Two of them, Bholanath and Satya Kinkar, were said to be still ill; the other accused Bejoy was said to be then mourning the death of his father. Further medical certificates by other physicians were produced on that day but the learned Magistrate again disbelieved the accused's version and called upon the defence Mukhtear to cross-examine the prosecution witnesses who were in attendance. The learned Muktear haying decline to do so, the learned Magistrate discharged all the prosecution witnesses and fixed the 20th January, 1956, for examination of the accused under Section 343, Criminal P. C., and for arguments. As the adjournment costs awarded on the previous occasion remained unpaid, the learned Magistrate ordered the issue of distress warrants as well as warrants of arrest against the accused with a bail of Rs. 1,000 for each. Thereafter the accused moved the learned Sessions Judge for transfer of the case under Section 528, Criminal P. C. This application was refused.
3. Mr. S. S. Mukherjee has taken the point that in the circumstances disclosed as the learned Magistrate was bound to adjourn the case on the first occasion, he had no power to order any adjournment costs. Mr. Mukherjee has further contended that consequently the order for the issue of the distress warrants for the realisation of the adjournment costs was without Jurisdiction.
4. Mr. Prasun Ghose on behalf of the opposite party has contended that the terms of Section 344, Criminal P. C., were wide enough to include an order for costs. The Question for decision is not whether a Magistrate has power under Section 344, Criminal P. C., to award costs but whether, when an accused is absent and the case must necessarily be adjourned to secure his attendance, a Magistrate has any power to order adjournment costs. Henderson J., in the case of Ichab Sheikh v. Khirotie Kumar Ghose, 48 Cal WN 084 : (AIR, 1949 Cal 254) (A), took the view that although in adjourning a case under Section 344, Criminal P. C., the Court had power to make an order for costs, it had no power to make such an order, when the accused, at whose instance the adjournment was granted, was absent; for the Court was in any event, bound to adjourn the case. We would agree with this view and hold that in this case the learned Magistrate had no power to order any adjournment costs. Mr. Ghose has referred us to the case of Sew Prosad Poddar v. Corporation of Calcutta, 9 Cal WN 18 (B), for the view that an order for costs can be made under Section 344, Criminal P. C. This proposition is not questioned, but, as We have already observed, the learned Magistrate was, in the circumstances disclosed, bound to adjourn the case, and there was no question of awarding any adjournment costs.
5. The order of the learned Magistrate dated the 13-1-1956, would show that he was of the view that the accused had conspired together to delay the hearing of the case and that for that purpose they had obtained false certificates from different physicians. What the basis for such an opinion was, we do not know. We think, however, that in the circumstances disclosed it would be better if the trial were to be held by a learned Magistrate other than the trying Magistrate.
6. We would, in the circumstances, set aside the learned Magistrate's order discharging the prosecution witnesses and transfer the case from his file to the file of another learned Magistrate to be selected by the learned District Magistrate. The order for costs as well as the subsequent order issuing distress warrants are set aside.
7. In the result, the application is allowed and the Rule is made absolute.
8. I agree.