IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 Crl.MC.No. 3908 of 2010() ------------------------------------- CC.540/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-IV, KOZHIKODE .................... PETITIONERS/ACCUSED 1 TO 3: ----------------------------------------------- 1. SHYLESH, S/O.RAMADASAN, MATHIYAD HOUSE, CHETTITHOPPU PARAMBU, B.G.ROAD, WEST HILL, KOZHIKODE. 2. RAJEESH @ KUTTAPPU, S/O.RAJAN, NELLIPURATHU HOUSE, THUPPAYAMTHODI, B.G.ROAD, WEST HILL, KOZHIKODE. 3. ARJUN @ KICHU, S/O.SURENDRAN, CHANDUPARAMBU HOUSE, B.G.ROAD, WEST HILL, KOZHIKODE. BY ADV. SMT.LATHA PRABHAKARAN, SRI.K.M.JAMALUDHEEN. RESPONDENT/COMPLAINANT - STATE: --------------------------------------------------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3908 of 2010 -------------------------- ORDER Petitioners are the accused in C.C.No.540/2008 on the file of Judicial First Class Magistrate's Court-IV, Kozhikode, This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A order passed by the learned Magistrate, directing petitioners to pay cost to the witnesses, who were present in court, but could not be examined for the failure of the petitioners to appear. It is submitted that an application for adjournment was moved by the counsel on behalf of the petitioners. 2.Learned counsel appearing for the petitioners was heard. 3. Argument of the learned counsel is that though CWs 1 to 4 were present earlier, the case was adjourned not on account of the petitioners but due to non-availability of Assistant Public CRMC 3908/10 2 Prosecutor and on 6.7.2010, adjournment was granted on valid grounds and hence, cost should not have been awarded and in any case, the cost awarded is excessive. 4. Annexure-A order of the learned Magistrate shows that on the previous posting day also, CWs 1, 3 and 4 were present and petitioners were absent and witnesses could not be examined and they were directed to appear on the next posting day and on which day also, petitioners were absent and sought adjournment. It is in such circumstances, learned Magistrate granted adjournment directing petitioners to pay cost at the rate of Rupees One thousand each to the four witnesses in addition to imposition of a cost of Rupees One thousand to the State. 5. When prosecution witnesses were present in court and the case was adjourned due to the failure of the accused to appear and later, when the witnesses again appeared and the accused failed to appear and adjournment was sought for, learned CRMC 3908/10 3 Magistrate was justified in granting cost to the witnesses as it was not due to the failure of the witnesses that they could not be examined. In such circumstances, I find no reason to interfere with the cost awarded to the witnesses. But, there is no justification for awarding cost to the State. Hence, Annexure-A order is modified to the extent of quashing the cost of Rupees One thousand to the State. Petition is disposed. 23rd September, 2010 (M.Sasidharan Nambiar, Judge) tkv