- (1.) ALOK K. Singh, J. Heard Sri D. S. Mishra, learned Counsel for the applicant, Sri Rajendra Kumar Dwivedi, learned A. G. A. and perused record.
(2.) BY means of this petition under sections 482, 483, 397 (1) and 401 Cr. P. C. two orders passed by the Court below dated 27. 5. 2008 and 3. 6. 2008 have been challenged. From the perusal of the first im pugned order dated 27. 5. 2008 (Annexure-4) it transpires that in the murder trial pending before the Court below for the last three years wherein prosecution evidence was about to conclude (S. T. No. 47/05 un der sections 147, 148, 302, 504. 506 and 120-B I. P. C.) and the last prosecution witness Gorakh Singh was in attendance on a par ticular date but in stead of cross- examining him an application was moved by the de fence praying for adjournment for 3. 6. 2008 on the ground that Counsel Sri Ved Prakash Pandey had some problem in his left leg while wife of another Counsel Sri Vijay Bahadur Singh was not feeling well and, therefore, he has gone to Lucknow with her. The learned lower Court after hearing arguments observed that there were other counsels also and the applica tion for adjournment has been moved with a view to protract and prolong the hearing. Still keeping in view that both the advo cates are practicing in district Sultanpur, one last opportunity for cross-examination of witness Gorakh Singh was accorded on payment of Rs. 15000/- as cost to be de posited within two days in the treasury. It is submitted that the cost was deposited accordingly and on 3. 6. 2008 witness Gorakh Singh has also been cross-examined. Learned Counsel for the appli cant submits that there is no specific provi sion in the entire Code of Criminal Proce dure under which such cost could have been imposed. Be that as it may. But as per long established practice and also keeping in view the principles enunciated in the case of Salem Advocate Bar Association v. Union of India, and having regard to the facts and circumstances of a particular case if cost is imposed in the ends of justice, as in the instant, case the same would be con strued to have been done under the inher ent powers of the Court for administering fair and speedy justice. However, such cost should be realistic, and as far as possible, the actual cost, which had to be incurred by the other party, where the adjournment being sought is found to be avoidable. In respect of seeking an adjourn ment the learned Counsel for the applicant also placed reliance on the case of Rais Ah mad v. State of U. P. and others, (1999) 6 SCC 391 (before Hon'ble Mr. Justice S. Sagir Ahmad and Hon'ble Mr. Justice D. P. Wadhwa ). This case pertains to practice and procedure in respect of the cases pending in the High Court and not in the District Courts. Ac cording to the facts of this case the learned Counsel had obtained permission of the Chief Justice under the High Court Rules for adjournment of his all cases pending in the High Court up to certain dates. Writ petition in question was, however, listed very next day and though the Counsel sent an illness slip but that was not brought to the notice of the Court by the Bench Secre tary. Consequently, the writ petition was dismissed on merits. The Hon'ble Apex Court held that in the case not having been adjourned, the result was serious miscar riage of justice and the High Court erred in not allowing application for recall of the order of dismissal. It was also observed that the High Court was duty bound to give effect to an order of Hon'ble the Chief Justice allowing the application seeking adjournment by not listing the case of that Counsel concerned before the Court. However, if such a case is listed by mistake, the litigant or Counsel cannot he made to suf fer. It was also observed that there is spe cial significance of illness slip as per long traditions which bind in relation of mutual trust between Judiciary and Bar. But this case law deals with only the High Court Rules, and the established practice and procedure followed in the High Court where the cases are listed by Registry. But these rules i. e. the Allahabad High Court Rules, 1952 have no application in the sub ordinate Courts. There is also no such es tablished practice or procedure of illness slip there. Moreover in the lower Court the cases are listed by the Presiding Officer of the Court itself and not by any Registry. Moreover, the facts and circumstances of the case in hand are different. Further in the aforesaid case Hon'ble Chief Justice had already allowed the application of a particular Counsel for a particular period and therefore his case should not have been listed. But by mistake this case was listed and the illness slip given by the Counsel, was also not brought to the notice of the Court by the Bench Secretary. Whereas in the case in hand, there were no such facts and circumstances and therefore this case law is not applicable in the present case.
(3.) THEREFORE, it can be concluded that an adjournment is not a right of a party. It has to be on showing special and extra or dinary circumstances and cannot be a rou tine at least in the cases pending before the lower Courts. However, in view of the entire facts and circumstances of the present case as mentioned herein above in para 3 of this judgment the imposition of amount of Rs. 15, 000/- as costs appears to be exorbitant. Therefore, by invoking inherent powers of this Court, the aforesaid impugned order so far it relates to imposition of cost, is partly modified and the cost is reduced to a notional amount of Rs. 1000/- The remain ing amount of Rs. 14, 000/- shall be re turned to the depositor (accused ). As the cross-examination of witness Gorakh Singh has already been conducted the remaining part of the order shall remain intact and no further order is required in the matter.;