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Criminal Revision No. 520 of 1967, decided on 22nd February 1968.

S. 344 (1)-- Adjournment on prayer of accused‑Adjournment cost not to be awarded to place obstacle in the way of accused in his proper defence.

The criminal Courts are empowered to order the accused" if he asked for an adjournment, to pay costs to the complainant, but this power should not be exercised in such a way as to place obstacle in the way of the accused properly defending himself.

In re : Abdul Rahman 19 Cr. L J 326 ref.

Shaukat Ali Khan for Petitioners.

Nemo for the State.

In this case a Rule was issued upon the Deputy Commissioner of Rajshahi to show cause why the order dated 13‑5‑66 by Mr. M. R. Azad, Magistrate, First Class, Naogaon, directing the petitioners to pay a sum of Rs. 170 an adjournment cost to the State should not be set aside.

2. The petitioners are being prosecuted in the Court of the said Magistrate to face charge under section 500 of the Pakistan Penal Code read with section 7(3) of the East Pakistan Public Safety Ordinance. On 12‑5‑66 the petitioners, who are accused persons, were present and four witnesses including the Investigat ing Officer were present for the prosecution. The defence prayed for an adjournment on the ground that his Advocate from Rajshahi could not come due to illness. The learned Magistrate was pleased to grant an adjournment but he saddled in the petitioners with an adjournment cost of Rs. 170 to be paid on the next date fixed on 14‑6‑66. Being aggrieved by such an order, the petitioners came up to this Court and obtained this Rule.

3. Under section 344 (1) of the Code of Criminal Procedure the Court may adjourn the hearing from time to time on such "terms as it thinks fit". Mr. Shaukat Ali Khan, learned Advocate for the petitioners has submitted before me that the Court was not entitled under the Criminal Procedure Code to grant such adjournment costs against accused persons. In support of his view he has cited before me the case reported as in re : Abdul Rahman (19 Cr. L J 326). That was a case decided by the Bombay High Court in the year 1917, whereas subsection (iv) of section 344 of the Code of Criminal Procedure was enacted in the year 1932. This makes it clear that, no doubt, the Criminal Courts are empowered to order the accused, if he asked for an adjournment to pay costs to the complainant, but this power should not be exercised in such a way as to place obstacle in the way of the accused properly defending himself. In the instant case I went through the order sheet of the learned Magistrate from 15‑12‑1965 to 12‑5‑1966 and it appears that he had to adjourn the case on several dates as the trying Magistrate was away on duty and the Investigating Officer and other prosecution witnesses were also absent. On 12‑5‑1966 the prosecution was no doubt ready with four witnesses and the Investigating Officer but the petitioners had a very reasonable ground to pray for an adjournment and having regard to such circumstances I am constrained to hold that the order of payment of adjournment costs to the tune of Rs. 170 in favour of the State was no doubt made in a manner so as to place an obstacle in the way of the accused persons to defend themselves and in such view of the matter I find that the order should be set aside. In the result, the Rule is made absolute and the impugned order dated 12‑5‑1966 directing the accused petitioners to pay an adjournment cost of Rs. 170 to the State is set aside.

Let the records be sent down at once with a direction to dispose of the matter expeditiously.

Rule made absolute.

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