SOURENDRA NATH CHAKRABORTY Vs. NIVEDITA CHAKRABORTY

JUDGEMENT

(1.) This Rule is directed against an order dated 26.6.80 passed by the learned Judicial Magistrate, 1st Class, Barrackpore adjourning a case u/s. 125 of the Criminal Procedure Code on the ground of inability of the senior lawyer for petitioner to attend court on that day which was fixed for examining witnesses. The learned Magistrate ultimately granted adjournment and awarded a cost of Rs. 150/- to be paid to the opposite party, wife. The reason for awarding such high cost is that on a perusal of the order-sheet of the case the learned Magistrate observed that on every occasion since the case had been transferred to him, the petitioner prayed for adjournment giving different reasons on different occasions and the learned Magistrate felt that if this sort of tactics continued it would cause great injustice to the opposite party, wife. None of the lawyers for the petitioner, though there were more than one, was prepared to cross-examine the witness of the opposite party, wife. At first, the learned Magistrate rejected the petition for adjournment and asked the petitioner's husband to get ready at once and he fixed 3-00 P.M. positively for hearing the matter that day. At about 3 P.M. another petition was filed on behalf of the petitioner. The learned Magistrate observed that as he wanted to give the opposite party another chance for getting ready with his case, he adjourned the case but awarded cost as observed earlier. It is against his order that the petitioner has come up in revision.

(2.) Mr. Sekhar Basu appearing for the petitioner has submitted that the learned Magistrate in a proceeding under section 125 Cr. P. C. which is in the nature of a quasi civil proceeding is not competent to award cost. The only cost that is prescribed in respect of matters u/s 125 of the Code is that under the proviso to sub-section (2) of section 126 of the Code, when the husband comes up after the proceeding is heard exparte to set aside that from the date of the order. In such case the learned Magistrate has the discretion to reopen the case upon payment of some cost to the wife, opposite party as the Magistrate thinks just and proper. That is the only provision providing for cost to be awarded in a proceeding u/s 125 of the Code.

(3.) The learned Magistrate, however, awarded the cost u/s 309 Criminal Procedure Code. Mr. Basu has submitted that section 309 of the Code of Criminal Procedure doe not apply inasmuch as section 126 itself provides for awarding cost, but that section does not provide for awarding adjournment cost. He has submitted that the enquiry as envisaged under section 309 Criminal Procedure Code relates to a criminal proceeding and the proceedings under section 125 not being a criminal proceeding, Section 309 Cr. P. Code is not attracted. Mr. Basu has cited several cases which were decided under the provision of the previous Code u/s 488 of the previous Cr. P. Code. Those cases are reported in AIR 1960 SC 882, 40 Cr. Law Journal, 441 and 29 Criminal Law Journal, 1002. On the other hand, Mr. Das for the opposite party has referred to a case reported in AIR 1958 Allahabad, 578. That case was in connection with a proceeding u/s 107 Cr. P. Code where it was found that section 344 of the previous Code applied to such proceedings though they are not strictly trials under the Criminal Procedure Code. But in this case, it must be observed in a case before the amendment to the Code came into operation. Mr. Basu has relied on the Supreme Court decision referred to above to point out that the proceedings under S125 of the Criminal Procedure Code are quasi civil in nature and therefore, section 309 Criminal Procedure Code will not apply to such proceedings which are in the nature of a civil proceedings incorporated the Criminal Procedure Code for the purpose of giving relief to a distressed wife expeditiously. The other decisions referred to above, were decided before the present section 309 Criminal Procedure Code came to be incorporated in the amended Criminal Procedure Code and, therefore, it is not necessary to discuss the same.