The main legal point established in the judgment is that the power of the court to adjourn proceedings 'on such terms as it thinks fit' does not include a power to direct the counsel to pay the cost, as explained in Explanation 2 to Section 309 of the Code.

The order which is impugned is, no doubt, unusual. None of the parties in the case has challenged it. It is challenged by the advocate who is directly affected by the order which was passed by a Sessions Judge while adjourning a sessions trial. As per the order, learned Sessions Judge directed that the advocate (the petitioner herein) "shall see that an amount of rupees one thousand is deposited so as to be paid to C.Ws. 1 to 10 as day costs". This petition is filed under section 482 of the Code of Criminal Procedure (for short 'the Code') for quashing the said order.

2. There were six accused in the case which was pending before the Sessions Court. First accused was represented by one counsel and the remaining were represented by another counsel. The cases are posted for evidence on 22-9-93. Witnesses for prosecution were present in the trial court on the said date. But examination of those witnesses could not be proceeded with, about which learned Sessions Judge has minuted the following in the proceeding paper :

"All the accused are present. C.W. 1 is examined in part and Ext. P1 and M.Os. I to III are marked and identified in the presence of the 1st accused's counsel's junior, who has also vakalath. This case is posted for trial as per the convenience of all advocates appearing for the accused. Main charge witnesses are present. On account of the conduct of the 1st accused, work in this court is paralysed and considerable inconvenience is caused to all charge witnesses including official witnesses. Therefore, the case is adjourned to 16-10-93 on condition Advocate Shri ......... shall see that an amount of rupees one thousand is deposited so as to be paid to C.WS. 1 to 10 as day costs".

3. According to the petitioner, the case was earlier pending before the local Assistant Sessions Court and for administrative reasons the case was transferred to the Addl. Sessions Court, but petitioner was unaware of the said change and the accused did not engage him thereafter. Another advocate practising at the same station was appearing for the first accused in the Sessions Court. According to the petitioner, no counsel can be penalised for seeking adjournment in the case.

4. I shall first consider the legality of the impugned order before dealing with its factual conspectus.

5. Section 309 of the Code contains rules regarding postponement or adjournment of proceedings in criminal courts. Sub-section (1) stipulates that adjournment of proceedings beyond the following day shall not be granted except for reasons to be recorded. Normal rule is that proceedings shall be continued from day to day until witnesses in attendance have been examined. However, sub-section (2) enables the court to adjourn proceedings for reasons to be recorded "on such terms as it thinks fit". But the said power of court is bridled with the embargo incorporated in the second proviso to the sub-section. It reads thus; "Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing".

6. It is the legislative concern for witnesses expressed in the above language that when a witness is present in court no adjournment shall be granted "except for special reasons". Law further enjoins that such special reasons must be recorded by the court in writing. I note that adjournment of proceedings beyond the next day is permitted only as exception to the general rule that proceedings shall continue from day to day. But legislature was chary in permitting courts to adjourn proceedings when a witness is present in court. Hence the embargo is incorporated in the second proviso. To make the strict rule more pragmatic a guarded special exception is made by providing that if the court has to adjourn proceedings when a witness is present in court, special reasons must be recorded by the court.

7. In spite of all such legal trammels the situation in the tria