GODAVARIS MOHAPATRA Vs. RAJKISHORE BISWAL

JUDGEMENT

(1.) THIS is a revision against an order dated 6. 2. 59 passed by a first class Magistrate, Shri K. V. R. Patnaik, reviewing and cancelling his previous order directing the opposite party to pay Rs. 50/- as costs to the petitioner.

(2.) THE petitioner was undergoing trial in his Court for an offence under Section 500 I. P. C. started at the instance of the opposite party. On 14. 10. 58 though both parties were present, the complainant (opp. party) asked for an adjournment. The Magistrate directed him to pay Rs. 50/- as costs to the accused. Subsequently a petition was filed before the same magistrate for review of his order on the ground that while granting an adjournment under Section 344, Cri. P. C. he had no jurisdiction to award costs to either party. Then, after hearing both parties, he passed an order on 6. 2. 59 cancelling his previous order ? relying mainly on some observations in a Single Judge decision of this Court reported in Jadumoni Mangaraj v. Sarat Chandra Das 22 Cut LT 195 : (S) AIR 1958 Orissa 209.

(3.) THE Magistrate has clearly committed an error in thinking that while granting an adjournment under Section 344 Cr. P. C. he has no jurisdiction to award costs in special cases. The case reported in 22 Cut LT 195 : ( (S) AIR 195ft Orissa 209) is distinguishable, for, there, the costs were awarded against an accused who wanted adjournment on the ground that he was ill-There was a medical certificate in support of that prayer. The learned Judge relied on a Division Bench decision of the Calcutta High Court reported in Mohan Lal v. Mohini Mohan AIR 194m Cal 194 where it was pointed out that if an accused is absent on the date fixed for the hearing, the court is bound to give an adjournment and take coercive steps to secure his attendance by cancelling his bail bond. If an accused is absent a criminal trial cannot proceed and consequently the trying Magistrate has no discretion, either to grant or refuse to grant an adjournment. Hence when he has no discretion in the matter and is bound to adjourn the case he cannot grant costs to either party. In the present case however the adjournment was asked for by the complainant and the Magistrate had discretion to proceed with the case and refuse an adjournment. When therefor he thought that adjournment may be granted provided the accused is compensated for the unnecessary harassment by payment of costs his discretion under Section 344 (1a) was properly exercised. The words "on such terms as it thinks fit" occurring in Section 344 (1a) are wide enough to include grant of costs, if the reported decision in 22 Cut LT 195 : (S) AIR 1956 Orissa 209 he scrutinised it will be seen that on the facts of that ease it was held that the discretion was improperly exercised. It was nowhere laid down that the Court had no jurisdiction to grant adjournment costs under all circumstances.