SHAM SINGH Vs. STATE

JUDGEMENT

(1.) This is a reference, made by the learned Sessions Judge, Mahasu, Sirmur, Bilaspur and Kinnaur, Sessions Division.

(2.) Sham Singh, petitioner, and others, were proceeded against, under Section 107, Criminal Procedure Code in the Court of the Magistrate First Class, Bilaspur. Before any evidence was recorded in the proceedings, the petitioner, under Subsection (8) of Section 526, Criminal Procedure Code, intimated to the Magistrate that he intended to make an application for getting the case transferred to some other Court. The Magistrate adjourned the case to enable the petitioner to move the transfer application. He burdened the petitioner with costs of Rs. 28/-, as the expenses of the prosecution witnesses, who were present, but were not examined, because of the adjournment of the case. The petitioner went up in revision to the learned Sessions Judge, against the order, directing payment of Rs. 28/-, as costs. The learned Sessions Judge has recommended that the order, imposing costs, be quashed, as it is illegal, being in contravention of the provisions of Sub-section (8) of Section 526, Criminal Procedure Code. 2a. The aforesaid Sub-section reads as follows :

(3.) A plain reading of the Sub-section makes it abundantly clear that as soon as any party interested, whose case is not hit by the proviso to the Sub-section, intimates to the Magistrate that he intends to move an application for transfer, it becomes imperative for the Magistrate to adjourn the case. The only term which can be imposed on such a party is that he can be required to execute a bond, without sureties, of an amount not exceeding two hundred rupees, that he will make the transfer application within a reasonable time, to be fixed by the Magistrate. No other terms, such as payment of costs, can be imposed on the party. The learned counsel for the respondent referred to the Explanation, appended to Sub-section (9) of Section 526, Criminal Procedure Code, which provides that nothing contained in Sub-section (8) or Sub-section (9), restricts the powers of a Court under Section 344, Criminal Procedure Code and contended that the Explanation leads to the inference that a Magistrate can, while granting adjournment under Sub-section (8), for making an application for transfer, direct the payment of costs, in exercise of the powers, under Section 344. The contention of the learned counsel does not appear to be sound. The Explanation simply means that Sub-section (8) or Sub-section (9) does not, limit or otherwise affect the powers of a Court under Section 344, Criminal Procedure Code, to postpone or adjourn an inquiry or trial. In other words, the Court may, even in those cases, in which it is not bound to adjourn the inquiry or trial under Sub-section (8), grant adjournment, in exercise of its powers, under Section 344, for making an application for transfer, if the circumstances of the case constitute a reasonable cause for adjournment within the meaning of that section. If the adjournment is granted under Section 344, then, the Court may impose such terms, including the payment of costs, as it may think fit. This is the true import of the Explanation. The Explanation cannot be interpreted to mean that a Court can, while granting adjournment, under Sub-section (8), order payment of costs, in exercise of its powers, tinder Section 344. The view that a Court, granting an adjournment, under Sub-section (8), cannot make an order for payment of costs, is supported by a decision of the Madras High Court, In re Venkatarama Chetti, AIR 1942 Mad 178. The facts in that case were that the petitioner had intimated to the Sub-Divisional Magistrate that he intended to move the High Court for the transfer of his case from his Court. The Sub- Divisional Magistrate, thereupon, passed an order, under Section 526 (8) Criminal Procedure Code, adjourning the case and requiring the petitioner to execute a bond for Rs. 200/-. The Sub-Divisional Magistrate, further directed that the petitioner should pay Rs. 39/8/- as the costs of the day to the prosecution. The order, directing the payment of costs was held to be illegal, and was quashed, by the High Court. It was observed that:-