D.N. Das Gupta, J.@mdashThis is a reference u/s 438 of the Code of Criminal Procedure made by the learned Sessions Judge of Midnapore recommending that the order of a learned Magistrate directing the accused to pay costs and the subsequent orders for recovering the same should be set aside. It appears that on the 15th January, 1963 a petition was filed by the accused u/s 526 of the Code of Criminal Procedure for transfer of the case. The learned Magistrate adjourned the case but on certain terms. He directed that "the applicant should pay the expenditure incurred by all the witnesses present today (total Rs. 80/-)......". In passing the order for costs of adjournment the learned Magistrate relied upon the explanation to section 526(9) of the Code of Criminal Procedure which provides, "Nothing contained in Sub-section (8) or sub-section (9) restricts the power of a court u/s 344." The order of the learned Magistrate is wholly improper and cannot be supported. An order for costs of adjournment should not be passed in the case of an application for transfer. The order is accordingly set aside, and all orders passed in pursuance of the order for adjournment costs are set aside.
The reference is accepted as above.
