019-NLR-NLR-V-40-SABAPATHY–v.-THARMALINGAM–et-al.pdf
de KRKTSER J.—Sabapathy v. Tharmalingam.
79
1938
Present: de Kretser J. .
SABAPATHY v. THARMALINGAM et al.
310—P. C. Jaffna, 220.
Costs—Adjournment of case—Power of Police Magistrate to order payment ofcosts—Criminal Procedure Code, s. 289.
A Police Magistrate has power in granting an adjournment of a caseto order costs to be paid by a party on whose application the adjournmentis made.
Paul v. Sinniah Kangany (5 C. W. R. 143) not followed.
PPEAL from an order of the Police Magistrate of Jaffna.
September 30, 1938. De Kretseh J.—
In this case on April 19 the complainant applied' for a postponementand this was objected to "by the opposite side. The acting Magistratepostponed the case and ordered the complainant to pay Rs. 10 to theaccused to be divided equally between them for the day’s expenses. OnApril 22 he ordered a distress warrant to be issued for the recovery of themoney and postponed the trial for May 10. On May 10, the complainantsent a medical certificate and the Magistrate not being satisfied with theexcuse given for his absence discharged the accused. Meanwhile, accord-ing to the journal, a petition of appeal has been filed on April 30 and thedefendants had been given notice for May 9. The petition of appeal isitself undated and is signed by the petitioner but was drawn by hisProctor. I think it is unsatisfactory that a petition addressed to thisCourt should bear no date, but the question that arises is whether theMagistrate had any power to make the order he has made. CrownCounsel refers me to section 289 of the Criminal Procedure Code whichempowers the Court to order a postponement or an adjournment on suchterms as it thinks fit. The terms of this section seem to be wide enoughto cover the present order, and Sohoni in his work on the CriminalProcedure Code of India, in dealing with the corresponding section, citesa number of cases in which similar order has been made. Paul v.Sinniah Kangany1 is a decision by de Sampayo J. An which he
A
F. A. Tisseverasinghe, for appellant.
Cur. adv. vult.
i 5 C. W. R. 143.
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de KRESTER J.—Sabapathy v. Tharmalingam.
says, “ that section 289 does not authorise an order for costs andthere is no authority for a criminal court ordering costs to be paid by oneside or the other excepting such costs as Crown costs and compensation ”.The authority is directly in point, but on the other hand there was noappearance for the respondent and the attention of de Sampayo J. doesnot seem to have been directed to any authority. In the present casethe appellant is absent. The order in my opinion is justified and I see noreason to interfere with it.
Mr. Tisseverasinghe argued the matter further on Friday, September30, 1938, and the points made by him were : —
That section 289 does not use the word “ Costs ” and that costsshould not be considered to be included in the expression “ Terms
He quoted Sangaralingam Mudaliyar v. Narayana Mudaliyar andothersl, as supporting the decision in this way, viz., that the CriminalProcedure Code had provided for the Appellate Court ordering costs andthe Police Court ordering Crown costs, and that therefore, on the principleof the maxim expressio unius est exclusio alterius, section 289 should notbe considered to empower the imposition of costs ;
That it had not been the practice to award costs in criminal casesand it would be a dangerous thing to put such power in the hands of theminor judiciary ;
He asked whether the Court would deal in the same way with PoliceOfficers and other Government servants ;
Whether there was to be no limit on the amount of costs which aMagistrate might impose. He said that, for example, Counsel goes fromColombo to Galle and then, if the case is postponed, Counsel may, mentionhis fee and ask that the fee be included in the award of costs.
Further, costs may be awarded repeatedly and the result may be that aman who comes to Court with a grievance may find himself in jail becauseof his inability to pay costs. He supported the decision in Paul v. SinriiahKangany {supra) as coming from a Judge of great eminence arid experienceand suggested that the Indian authorities are not of much value, moreespecially as most of the reports themselves were not available and wehad to depend on notes made by a Commentator on the Code.
With regard to the first objection, I see no reason why section 289should be limited in the way he suggests. It does not seem to have beenso limited in the Indian Courts and I can conceive of other occasions onwhich a similar expression would be sufficient.to cover an order for costs.In section 82 of the Civil Procedure Code the language is that the Courtmay allow a postponement “on such terms'as to costs and otherwise”.One cannot argue from this that the Legislature felt the necessity for usingthe word “costs” and the argument is reallythe other way about. Itindicates—that the word “ terms ” would include costs—costs beingprobably specified merely as an indication of what might be done.
>45 Madras 913.
de KRETSER J.—Sobapathy v. Tharmalingam.
81
With regard to the second objection it fails when once his argument onthe first point is not sustained. In the Indian Code there was no provi-sion, such as we have in section 352 of our Code, justifying the AppellateCourt ordering costs and all that the case quoted decided was that theAppellate Court had no jurisdiction to award costs.
With regard to the third point made by him, I agree that it has not beenusual to award costs in criminal cases and in fact when this appeal wastaken up I myself was rather surprised by the order and no Counsel atthat time could refer me to any authority justifying the order, but CrownCounsel was able, in a little while with the assistance of his note book, torefer me to the section. The power which the Court has shouldundoubtedly be exercised with moderation, but it is a salutary power and Ithink that it might well be used more often than it has been in the past.I cannot accede to the argument that it is a dangerous thing to put suchpower in the hands of the minor judiciary both for the reason that I havemore confidence than Counsel in the minor judiciary and also because theLegislature has chosen to impose such confidence in that body of Judges.
The answer to the fourth point raised by him is in the affirmative. Thesection does not discriminate between Police Officers and Governmentservants and others and they will stand on the same footing. Section 352did not discriminate, and in P. C. Balapitiya, Case No. 44,852, S. C. M. ofApril 26, 1918, Bertram C.J. put a Fiscal’s officer on “ terms ”, theterms being that he should pay such costs with regard to the attend-ance of witnesses and legal assistance as the Magistrate thoughtreasonable. As a result of that decision section 352 was amended and itwas provided that no order for costs should be made against the Attorney-General or the Solicitor-General. In that case the Solicitor-General wasthe appellant. Dias in his Commentary on the Criminal Procedure Code,p. 746, quotes this case as an authority for an order for costs undersection 289. There is nothing in the Supreme Court Minutes to indicatethat the Magistrate himself had made an order for costs and. the recorditself is not available here.
With regard to the next point the Magistrate must always exercise hisdiscretion in a reasonable way and in exercising that discretion he will nodoubt bear in mind that it has. not been usual to award costs in criminalcases, the condition of the parties, the circumstances in which the post-ponement is asked for, and will not pay undue attention to the requestof Counsel. If the Magistrate does not exercise his discretion reasonably,this Court can always interfere by way of revision. But there should beno occasion for the award of costs repeatedly if litigation is conducted onproper lines. Counsel was here thinking of the state of things whichunfortunately has obtained, and obtains to-day, in most, if not in all,Police Courts. A very large number of cases is fixed for each day—anumber much larger than the Magistrate can hope to deal with—and theresult is that postponements are granted too readily and there may bethe temptation for a Magistrate to get. rid of a case by means of a threatto impose heavy costs on the party who is not ready. The state of thingshow prevailing is, I believe, being given attention to. It is due to anxietyon the part of the Magistrates to keep a short roll. It used to be common40/10
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be KRETSER J.—Sabapathv v. Tharmalingam.
to hear Magistrates take pride in the shortness of their rolls. This islegitimate pride if .the roll does indicate the true state of work in the Court,but the effort to keep a short roll is often due to other causes. 1 can onlyhope that Magistrates will be intelligent enough to realize that their workwill be judged not by the shortness of the roll but by the quality of thework they perform.
As far back as 1896 the Judges of the High Court of Bombay expressedthemselves as follows : —
“ The Honourable the Chief Justice and Judges regret to observe thatthp trial of cases is at times unnecessarily and unduly protracted.Their Lordships, therefore, desire to point out for the guidance of allMagistrates that it is their duty to despatch their criminal work withthe least possible delay, it being essential for the proper administrationof justice that it should be promptly dealt with. As far as possible,criminal work should be given precedence over other work, cases in whichaccused are in custody being taken up for disposal in preference to thosein which the accused are on bail. Magistrates should so arrange forthe despatch of their criminal Work that the hearing of one case should,as much as possible, not be allowed to interfere with the hearing ofanother, each one being, fixed for hearing for distinct days, due regardbeing had to their probable duration. Every effort should be made tominimize delay and hardship to the parties and witnesses. When acase is once commenced, it should be heard de die diem and completedwith every possible despatch, the whole, or as much of the working dayas could be spared, being devoted to its hearing. Witnesses remainingover from one day should be examined at the first sitting of the Court onthe following day. The practice of taking up a case for an hour or soand then dropping it again should be avoided, and cases should bedisposed of, as far as possible, in continuous sittings. Adjournmentsshould, as a rule, be avoided, especially when the accused are likely tobe prejudiced thereby, and if from any unavoidable cause an adjourn-ment is deemed indispensable,* it should be for as short a time aspossible. In any case, a trial once commenced should be continued. from day to day, except On Sundays and other days when the publicTreasuries are closed, and days when native usage absolutely requiresthe intermission of all business ”.
The reference in the case quoted above is to trials, but it applies withalmost greater force to inquiry in non-summary cases, and the length oftime that often elapses between the beginning and the completion of aninquiry, for example, in a case of murder is much to be regretted. The• fault is really due to the work not being properly arranged. In my opinionit is much better to have a roll of three months than to have a case takenup and postponed from time to time during the three months. Magistrateswill find, however, from experience that a three-month roll will not benecessary and spreading out their cases at the start for about six weekswill probably suffice.
Hodson v. Cassim.
S3
With regard to the Indian Reports, I have not been able myself to getmost of them, but I have no reason to doubt that they have been accu-rately summarized by Sohoni at p. 775 of his Commentary. I have tracedone of the cases, i.e., the case of Mathura Prasad v. Basant Lai ‘. In thatcase the Magistrate ordered the complainant to pay Rs. 100 being notsatisfied with the reason given for the complainant’s absence, namely,that he was ill. Richards J. said :—“ Section 344 of the Code of CriminalProcedure dealing with proceedings in prosecutions expressly empowersthe Court to postpone or adjourn an inquiry upon such terms as he thinksfit. It seems to me that this clearly entitles a Court to award costs to aparty who has been put to unnecessary expenses by the conduct of theother side. I, furthermore, think that it would, be- greatly deplored ifthe Court had no such power. I think the Court has power to awardcosts, and in proper cases it is a power that the Court should exercise;and I think a judicious exercise of the power would have the effect ofpreventing many useless adjournments’’. He then goes on to explainthe decision in King Emperor v. Chhdbraj Singh2. He says that theattention of the Judge in that case does not appear to have been calledto the terms of section 344 of the Indian Code; the case does not seem tohave been argued and, further, the award,of the costs was against theGovernment; it also appears, that, the adjournment was not the adjourn-ment of a trial but of an appeal. He goes on to say that in the case of SewPrasad v. Corporation of Calcutta, a Bench of the Calcutta High Court ina considered judgment held that the Magistrate in granting an adjourn-ment was entitled under section 344 to order costs to be paid by theparty in whose favour an order to adjourn was made. The Calcutta caseis reported in 1904, 9 C. W. N. 18 which is not available, but it is describedas a considered judgment of a Bench of the Calcutta High Court.
I see no reason to vary my previous order and the appeal will thereforebe dismissed.
Affirmed.