EMPEROR Vs. LAXMAN NATHA

JUDGEMENT

(1.) THIS is a reference by the District Magistrate of Sholapur asking the High Court to exercise the powers conferred by Section 439 of the Criminal Procedure Code with regard to an order of costs under Section 344, Criminal Procedure Code, passed by the Second Class Magistrate of Malsiras. That order was that the expenses incurred by the 10 accused in bringing a pleader from Pandharpur a distance of thirty-two miles and going back the same distance and also his pleader's fees which had been settled by the parties should be paid by the complainant.

(2.) NOW I could understand that if an adjournment takes place for which the complainant is solely to blame, then an order could be made that the complainant should pay any costs which may have been incurred by the accused. But in this case, as the District Magistrate points out, the complainant was not at fault as the Magistrate had taken cognizance of the offence upon police report. The Police Sub- Inspector was responsible for keeping the witnesses in question present on the date fixed, and not the complainant who was only a witness. We agree with the reasons given by the District Magistrate for setting aside the order passed by the Second Class Magistrate, and accordingly the order is set aside. If the amount has been paid it must be refunded.