Mallia Silua v. TJmiph
1953Present : H. A. de Silva J-
MALLIS SILVA, Petitioner, and I. L. USUPH, RespondentS. C. 370—Application in revision in M. O. Hambantota, 15,761
Criminal Procedure. Code-Section 2S9—Absence of accused on. date of trial—Postponement—-Power of Court to award costs in favour of complainant.
The accused was absent on the date of trial and was not; represented by counselor proctor. The Magistrate re-fixed the trial for another date and, purportingto act under section 289 of the Criminal Procedure Code, ordered the accusedto pay to the complainant a certain sum aa costs of the day.
3eld, that under section 289 of the Criminal Procedure Cc>de a Magistratehas no power to order an accused person to pay costs to the complainant whenan adjournment of the trial becomes necessary or advisable.
100TT. A. D"E SILVA ,7.—Mr,Ilia Silva v. Usuph
PPL<I CATION to revise an order of the Magistrate’s Court,
A. S. G. de Silva, with A. K.. Premadasa, for the accused petitioner.
S. H. Mohamed, for the complainant respondent.
H. A. Wijemanne, Crown Counsel, with N. T. D. Kanak.aratne, CrownCounsel, for the Attorney-General, amicus curiae.
'Cur. adv. vult.
August 18, 1953. H. A. de Silva J.—
This matter comes up in revision. The question that comes up fordecision in this case is whether under section 289 of the Criminal ProcedureCode the Court is empowered to order costs of the day against the accusedon an adjournment of the trial. As the matter is of some importance,
I sought the assistance of the Attorney-General. Crown Counsel re-presenting the Attorney-General has kindly assisted the Court at theargument.
It would appear that on the 21st June, 1951, when this case came upfor trial before the Magistrate the complainant Mallis Silva was presentand the accused was absent. The complainant was represented by hiscounsel, Mr. Azeez, instructed by his proctor. The accused was notrepresented by counsel or proctor. He sent a medical certificate to theeffect that he was unfit to attend Court on that day, owing to ill-health,whereupon counsel for the complainant challenged the medical certificateand objected to an adjournment of the trial. The learned Magistrate,having recorded the evidence of a witness called by counsel for thecomplainant, re-fixed the trial for the 31/8/51, and ordered the accusedto pay to the complainant a sum of Rs. 250 as costs of the day. Thelearned Magistrate has purported to act under section 289 of the CriminalProcedure Code, when he made that order.
Section 289 empowers the Court to postpone the commencement ofor adjournment of any inquiry or trial if from the absence of a witnessor any other reasonable cause it becomes necessary or advisable to do so.The section further says that the Court may from time to time order apostponement or adjournment on such terms as.it thinks fit for suchtime as it considers reasonable and may remand the accused if in custodyor may commit him to custody or take bail in his own recognizance orwith sureties for his appearance.
Two local, authorities bearing on this point have been cited to me atthe argument. Sir Thomas de Sampayo J., in Paulo. Sinniah Kangany ',held that a Magistrate had no power to order an accused to pay thecosts of the. complainant’s attendance at Court. D& Sampayo J.observed thus :•
“ The ' terms ’ here referred to obviously do not include payment ofthe costs to one side or the other, but purely to such conditions as arereferred to ih the subsequent part of the section. There is no authority.
5 Ceylon Weekly Reporter 143.
IT. A. DE STXVA J.—-JMallis Silva v. Usu-ph
for a Criminal Court ordering costs to be paid by one side or the other. except such costs as Crown costs and compensation, which arementioned in section 197, for bringing a frivolous or vexatious case.The order is beyond the powers of the Police Court, and is thereforeset aside. ”
In the case considered by Sir Thomas de Sampayo J., the accusedwas present in Court and was represented by a Proctor on the date oftrial. The accused’s Proctor took objection to the jurisdiction of theCourt, and for that purpose the evidence of two witnesses who were notpresent in Court was found necessary, and the case was adjourned forthe purpose.
In the present case under consideration the accused was absent, andhe was not represented by a pleader. The other local case that wascited before me was SabapatKy v. Tharmalingarn1 ; there de Kretser J.held that a Police Magistrate had power in granting an adjournment ofa case to order costs to be paid by a party on whose application theadjournment was made. De Kretser J. did not follow the decisionin Paul v. Sinniah Kangany (supra), though that ease was cited beforehim. He has referred to certain Indian cases when arriving at hisdecision.
Learned Counsel for the accused-petitioner has argued that the lawas laid down in Paul v. Sinniah Kangany (supra) was correct and shouldbe followed. He draws the attention of the Court to the omission of thewords “ as to costs ” after the words “ on such terms ” in section 289of the Criminal Procedure Code. He argues that “ such terms ” inthat section clearly refers to the words which have been used in the latterpart of secton 289 (1) of the Criminal Procedure Code. The termscontemplated there, he argues, may be the placing of the accused onbail in his own recognizance or with sureties for his appearance, if heis not already on bail, or if he is on bail, he may cancel bail, &c. InSabapathy v. Tharmalingarn (supra) the costs were ordered to be paid bythe complainant to the accused, but de Kretser J. drew no distinctionbetween the complainant and the accused in the application of theprovisions of section 289 of the Code.
This matter has been considered by the Indian Courts. The sectionof the Indian Penal Code which corresponds to our section is section344. Sohoni’s Code of Criminal Procedure, 14th Edition at page 680,deals with the question of the payment of costs by an accused on anadjournment being granted. The learned commentator has referredto three Indian cases and summarised the principles laid down thereinas follows :—
" where the accused was absent at the date of hearing and he wasnot represented by any pleader or counsel, the adjournment of thecase is altogether unnecessary, since the Court could not proceed withthe trial or record evidence in the absence of the accused. Undersuch circumstances, costs of the adjournment could not be awarded
1 (1938) 40 N. L. JR. 79.
TT A. DB SILVA J.'—MalHs Silva v. Usuph
against the accused person, as it is entirely opposed to the spirit of
conducting criminal trials to impose such terms on the accused, even
while granting adjournments for his benefit and at his request. ”
The simple test one has to apply in a case of this nature is, what isthe Court’s duty when an accused is absent on the date of trial ? It isobvious that no evidence can be recorded either at the trial or at theinquiry, where special provision is not made therefor, in the absence ofthe accused. The trial in a criminal case cannot proceed in his absence.That being so, the Court has got to adjourn the trial or inquiry and ordera warrant upon the accused in order bo secure his attendance and if heis already on bail to issue a notice on him and/or his surety, if any, toshow cause why the bail bond should not be cancelled oi forfeited.
In certain sections, of our Criminal Procedure Code special provisionhas been made for the payment of costs, vide sections 253 (6), 325 (3),194 and 352.
Some of the Indian authorities afford guidance for the interpretationof section 289 of the Criminal Procedure Code, vide Brown v. ChandaSingh ‘, where it was held that it would be entirely opposed to the spiritof section 344 that a Magistrate would pass orders awarding costs ofadjournment against the accused who was absent on the date of hearing.In Oulam Singh and another, accused, v. Inder Singh and others 2, it washeld that an order for costs against an accused person who was notpresent and who was unrepresented was unjustified when an adjournmentwas necessary. The learned Judge who decided this case has followedthe ruling in Brown v. Chanda Singh (supra).'.
Learned Crown Counsel who assisted me in this matter has supportedthe argument urged by learned counsel for the accused-petitioner, andcited to me various Indian authorities which have a direct bearing onthis matter. He has argued that the correct principle has been laid downby the Indian Courts. He has referred me to Gulam Singh and anotherv. Inder Singh and others (supra), and Mohan Lai Saraji v. Mohini MohanDas 3. The interpretation and the reasoning in the Indian cases are inaccord with our local ease, Paulv. Sinniah Kangany (supra).
I am of opinion that on a correct interpretation of section-289 of ourCriminal Procedure Code, a Magistrate is not empowered to order anaccused person to pay costs to the complainant, when an adjournmentof the trial has become necessary or advisable.
The order of the Magistrate dated 21st June, 1951, condemning theaccused to pay Rs. 250 to the complainant is set aside, and if the costshave been already paid, same will be returned to the accused.
Order set aside.
i Criminal Law Journal, ■/>. 78.
The Criminal Law Journal of India, Yot. 36, p. 101.
194S A. I. 1!. (Calcutta) Vol. 35, p. I’M.
MALLIS AILVA, Petitioner, and I. D. USUPH, Respondent