IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M- 23311 of 2010(O&M) Date of decision:- 22nd November, 2011 State of Haryana .....Petitioner VERSUS Sanjay Singh @ Roop Singh & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH PRESENT: Mr. Kartar Singh, DAG, Haryana, for the petitioner. None for the respondent. **** RANJIT SINGH, J. Being aggrieved against the order passed by the Additional Judicial Magistrate, and upheld by the revisional Court awarding costs in the case to be recovered from the pay & allowances of the Assistant Public Prosecutor, the State has approached this Court through the present petition. While issuing notice of motion, this Court considered the aspect in detail by making observation, which reads as under:- “State of Haryana has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C., aggrieved by the order dated December 16, 2009, passed by Judicial Magistrate, Ist Class, granting adjournment by imposing cost of Rs.500/- upon the prosecution to be recovered from the pay of Assistant PP appearing in the Court and same to be deposited with the legal aid fund. It is apparent that on December 16, 2009, out of six accused one accused Gurdial Singh was not present and counsel for Gurdial Singh had submitted in writing that he has got no objection if PWs are examined in absence of the accused Gurdial Singh. On said Crl. Misc. No. M- 23311 of 2010(O&M) -2- date PW ASI Pavittar Kumar was present but the Assistant PP had refused to examine the said witness in the absence of accused Gurdial Singh. The trial Court adjourned the case for April 16, 2010 after exempting the personal appearance of Gurdial Singh. ASI Pavittar Kumar was discharged for said date and was directed to appear on next date of hearing. The cost of adjournment was imposed upon the APP. The said order has been upheld by the revisional Court observing that in the interest of expeditious disposal of the case and under some directions of the High Court, the imposition of cost upon APP who had refused to examine the witness was a valid order. I have heard counsel for the State. The APP had refused to examine witness ASI Pavittar Kumar in absence of Gurdial Singh, accused without ascertaining the reason for the objection to the examination of witness. The trial Court appears to have penalized the APP. In case PW ASI Pavittar Kumar had arrested the accused Gurdial Singh, then the objection of the APP to examine the said witness in absence of Gurdial Singh is a valid objection because examination of said witness in absence of Gurdial Singh is a valid objection because examination of said witness in absence of Gurdial Singh would have been a reason for Gurdial Singh at the stage of final arguments claiming that his identity or arrest had been established in his absence. No doubt, the statement of a witness can be recorded in his absence but in presence of his counsel as per provisions of Section 273 Cr.P.C. but is not a hard and fast rule but when an objection of piecemeal evidence is raised by any of the parties, it should be declined without giving any Crl. Misc. No. M- 23311 of 2010(O&M) -3- reason. Even otherwise, imposition of cost on Assistant PP and issuing a specific direction on it, to recover from his salary, appears to be improper and reflects disharmony between the Judicial Officer and the APP in his Court which is not appreciated. Notice of motion for October 13, 2010. Meanwhile, operation of the order will remain stayed. The report under Section 173 Cr.P.C. will be made available on next date of hearing.” The right of the Court to impose costs may not be in dispute, but asking the counsel, who appears to assist the Court being, officer of the Court, to pay costs from his own pocket is apparently not supported by any provision. The Magistrate may have been justified in imposing the costs but apparently went a bit over board in imposing the costs to be recovered from the Assistant Public Prosecutor. The prayer for adjournment made does not sound without justification. One of the accused was absent. Though his presence was exempted but still the Assistant Public Prosecutor could reasonably view that examination of the witness in the absence of the accused may lead to unfair result or some adverse effect on the trial. He, accordingly, had prayed for adjournment and did not wish to examine the witness present in the case. Asking him to pay costs to be recovered from his pay and allowances, thus, would not appear to be fair or supported by any provision of law. Without going further into the merits of the controversy, I deem it appropriate to set aside that part of the order, whereby Assistant Public Prosecutor was directed to pay costs, which was further directed to be recovered Crl. Misc. No. M- 23311 of 2010(O&M) -4- from his pay and allowances. To this extent, the order is set aside. The petition is, accordingly, allowed in the above terms. November 22, 2011 ( RANJIT SINGH ) monika JUDGE