Kerala High Court
P.G. Thampi vs State Of Kerala And Ors. on 25 October, 1993
Equivalent citations: 1994CRILJ654
Author: K.T. Thomas
Bench: K.T. Thomas
ORDER K.T. Thomas, J.
1. The order which is impugned is, no dount, unusual. None of the parties in the case has challenged it. It is challenged by the advocate who is directly affected by the order which was passed by a Sessions Judge while adjourning a sessions trial. As per the order, learned Sessions Judge directed that the advocate (the petitioner herein) "shall see that an amount of rupees one thousand is deposited so as to be paid to C.Ws. 1 to 10 as day costs". This petition is filed under Section 482 of the Code of Criminal Procedure (for short 'the Code') for quashing the said order.
2. There were six accused in the case which was pending before the Sessions Court. First accused was represented by one counsel and the remaining were represented by another counsel. The cases are posted for evidence on 22-9-93. Witnesses for prosecution were present in the trial court on the said date. But examination of those witnesses , could not be proceeded with, about which learned Sessions Judge has minuted the following in the proceeding paper:
All the accused are present C.W. 1 is examined in part and Ext. P1 and M.Os. I to III are marked and identified in the presence of the 1st accused's counsel's junior, who has also vakalath. This case is posted for trial as per the convenience of all advocates appearing for the accused. Main charge witnesses are present. On account of the conduct of the 1st accused, work in this Court is paralysed and considerable inconvenience is caused to all charge witnesses including official witnesses. Therefore, the case is adjourned to 16-10-93 on condition Advocate Shri...shall see that an amount of rupees one thousand is deposited so as to be paid to C.WS. 1 to 10 as day costs.
3. According to the petitioner, the case was earlier pending before the local Assistant Sessions Court and for administrative reasons the case was transferred to the Addl. Sessions Court, but petitioner was unaware of the said change and the accused did not engage him thereafter. Another advocate practising at the same station was appearing for the first accused in the Sessions Court. According to the petitioner, no counsel can be penalised for seeking adjournment in the case.
4. I shall first consider the legality of the impugned order before dealing with its factual conspectus.
5. Section 309 of the Code contains rules regarding postponement or adjournment of proceedings in criminal courts. Sub-section (1) stipulates that adjournment of proceedings beyound the following day shall not be granted except for reasons to be recorded. Normal rule is that proceedings shall be continued from day to day until witnesses in attendance have been examined. However, Sub-section (2) enables the court to adjourn proceedings for reasons to be recorded "on such terms as ti thinks fit". But the said power of court is bridled with the embargo incorporated in the second proviso to the subsection. It reads thus; "Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing".
6. It is the legislative concern for witnesses expressed in the above language that when a witness is present in court no adjournment shall be granted "except for special reasons". Law further enjoins that such special reasons must be recorded by the court in writing. I note that adjournment of proceedings beyond the next day is permitted only as exception to the general rule that proceedings shall continue from day to day. But legislature was chary in permitting courts to adjourn proceedings when a witness is present in court. Hence the embargo is incorporated in the second proviso. To make the strict rule more pragmatic a guarded special exception is made by providing that if the court has to adjourn proceedings when a witness is present in court, special reasons must be recorded by the court.
7. In spite of all such legal trammels the situation in the trial courts is by and large miserable for witnesses since adjournments are generally granted very casually even when witnesses are present in court. It is a sad plight for innocent witnesses to suffer much travails for coming to the court on being summoned and going back without being examined and for coming back again to the same court on the next posting date. It would be a useful exercise if presiding officers of criminal courts remind themselves that a witness is not interested in coming to the court and he comes only because he has no other alternative when summoned by the court. In most cases witnesses have to sacrifice their own work to enable them to reach the court in time. When a witness is present in court his examination should not be adjourned to another day merely because counsel for the party is engaged in another case. The fact that counsel is engaged in another case is not a special reason for adjourning the trial without examining the witness present. It is the responsibility of the counsel to make other arrangements for examination of the witnesses even if he has to appear in another case.
8. In the presents case, learned Sessions Judge could have asked the counsel for the accused concerned who was present in court to cross-examine the witness and if he was not willing to do so, learned Sessions Judge could have asked the accused to cross-examine the witness. If the opportunity so afforded by the court is not availed of without adequate reasons, it is open to the court to record "no ross" and proceed to the next stage.
9. Learned Sessions Judge, instead of adopting any of the aforesaid courses, adjourned the cases by directing the petitioner advocate to pay Rs. 1,000/- as day costs. The power of court to adjourn proceedings "on such terms as it thinks fit" cannot possibly include a power to direct the counsel to pay the cost. Explanation 2 to Section 309 of the Code must be read in this context. It is as follows:
The terms on which an adjournment or postponement may be granted include, in appropriate cases, payment of costs by the prosecution or the accused.
10. It must be remembered that there was no such explanation in the corresponding provision in the Code of Criminal Procedure, 1898 (old Code). But there was a conflict of judicial opinion as between various High Courts regarding the question whether the power to adjourn "on such terms as it thinks fit" included the power to order costs under the old Code. Some High Courts had held that court had the power to make an order for payment of costs. Vide In re T. V. Venkatarama Chetti, AIR (29) 1942 Mad 178 : (43 Cri LJ 454), Ichab Sheikh v. Khirode Kumar, AIR (36) 1949 Cal 254 : (50 Cri LJ 491) and Monoranjan Roy v. Gadadhar, AIR 1962 Cal 98 : (1962 (1) Cri LJ 139). Some other High Courts took a different view (vide Jadumoni v. Sarat Chandra, AIR 1956 Ori 209 : (1956 Cri LJ 1419) and D. Narayana Rao v. Inspector of Labour, 1962 (1) Cri LJ 828. However, the said conflict has no relevance now with the insertion of Explanation-2 in Section 309 of the Code. Even so, the Explanation is to be understood as limiting the power to pass orders regarding costs. Court can only direct the prosecution or the accused to pay costs in appropriate cases. Court cannot mulct a counsel with cost in any proceeding. The role of a counsel in the court, though he is to represent a party in the proceeding, cannot be identified or equated with that of the party as for incidental pecuniary liabilities. It must be remembered that counsel is an officer of the court vide Jose v. Nandakumar, 1993 (2) KLT 342.
The direction made by the learned Sessions Judge that costs should be paid by the counsel is unsupportable in law. I, therefore, quash the order in so far as it directed the petitioner to pay the costs fixed by the learned Sessions Judge.
Crl. Miscellaneous Case is disposed of accordingly.