Case Title: Khandker Latifur Rahman vs. The State
Reference: 14 ADC (2017) 515
Judge: Justice Md. Abdul Wahhab Miah
Ratio of the Judgment:
“The High Court Division in exercising its inherent power under section 561A of the Code can award cost to any of the party of the proceedings but only in very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the provisions of the CrPC.”
Fact of the Case:
Five criminal petitions were filed together for leave to appeal by the accused petitioner against the judgment and order for discharging all the rules issued in the respective miscellaneous cases with costs.
The above mentioned criminal miscellaneous cases were filed before the High Court Division by the accused petitioner for quashing the criminal proceedings brought under section 138 of the Negotiable Instruments Act, 1881.
In all the cases, the same complainant alleged that the accused different cheques of different amount in his favour. The cheques were placed before the concerned bank for encashment and all the cheques except one were dishonoured by the bank for ‘stop payment’ instruction given to the Bank by the accused. The other one was for insufficiency of fund. Therefore, the complainant had filed five separate complaint petitions under section 138 of the Act, 1881 and charged was framed discharging the discharge application filed under section 265C of the CrPC. And against such orders the accused filed five separate applications under section 561A of the Code before the High Court Division (HCD) for quashment and obtained rule. After hearing the matter the HCD discharged the rule and awarded cost in favour of the respondent.
Position of the High Court Division:
The HCD awarded 10000 taka for each case
and then asked the petitioners to pay 1,00,000 taka to the respondent.
The High Court Division opined that costs may be awarded to the aggrieved party for causing financial hardship, leading a family to the verge of ruining, for inflicting mental agony on frivolous grounds or by resorting to dilatory tactics or on issues by law already settled by the Appellate Division, i.e. where the accused petitioner does not come in clean heads for seeking justice, but with collateral purpose. The HCD further argued that as the Act, 1881 is a piece of beneficial legislation and distinct from other penal law; hence, in appropriate case, costs may be awarded in case under the Act, 1881.
The main question before the court in this case was whether HCD can award cost while discharging a rule under section 561A of the CrPC in cases filed under section 138 of the NI Act.
The HCD while awarding cost did not refer
to any statute. The Appellate Division thus described the relevant legal
provisions in this matter.
In the Act 1881 there is no provision authorizing any Court to award costs either to the accused or to the complainant.
Under Section 544, 545 and 546A of the Code of Criminal Procedure, a criminal Court can pass an order to pay compensation to the complainant for defraying the expenses of prosecution. Whereas, section 250 of the Code authorizes a criminal Court to pay compensation to the accused for filing false or frivolous case. Again, section 344 of the Code provides for adjournment “On such terms” as the Court thinks fit, covers a direction to one of the parties to pay cost of the adjournment.
In Md. Habibur Rahman -V- State and another, 1981, DLR, 443, Mr. A.T.M Afzal J after considering the provisions of the various section of the Code, such as, section 544, 545, 344 and 546A of the Code set aside an order of cost by the Magistrate. It was held that a criminal Court at the stage of inquiry or trial may award adjournment costs under section 344 but the discretionary power of awarding cost must be exercised with circumspection and care and only under circumstances which call for it in the interest of justice.
But the question in the present case is whether the High Court Division in exercising its inherent power under section 561A of the Code can award cost to any of the party of the proceedings, particularly, the accused while discharging the Rule issued for quashing a criminal proceeding or not.
This same question considered by the Indian Supreme Court in the case of Mary Angel and others Vs State of Tamil Nadu, AIR 1999, S.C 2245. In that case the Supreme Court of India affirmed that in the exercise of its inherent jurisdiction the Court has the power to pass order for costs in appropriate cases if it is done i) to any order passed under the Code or (ii) to prevent abuse of the process of any Court or (iii) otherwise to secure the ends of justice.
It was also held that, “this extraordinary power is to be used in extraordinary circumstances and in a judicious manner. Costs may be to meet the litigation expenses or can be exemplary to achieve the aforesaid purpose.”
The Appellate Division held that generally the HCD cannot exercise it’s inherent power in awarding cost. But after considering the various related sections of the Code and the language of section 561A , the AD upheld the approach taken by the Indian Supreme Court in this matter and declared that the HCD shall have the discretion to award cost against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the provisions of the Code.
However, after considering the facts of the present case, the AD concluded that there are no extraordinary circumstances in the instant case and the order of cost does not come within the purview of section 561A. As such the AD declared that the HCD acted illegally and without any jurisdiction in awarding cost and expunged the related portion of the Judgment of the HCD.
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