The Court's competence to order payment of costs to the prosecution when a party intends to move the High Court for transfer is governed by Section 526 (8) and does not fall under the Court's power to grant adjournment under Section 344.

Horwill, J.

1. The petitioner was desirous of moving this Court to transfer a case from the file of the Sub-Divisional Magistrate of Kollegal; and in compliance with the provisions of Section 526 (8) of the Criminal Procedure Code, he intimated the fact to the Court. The Sub-Divisional Magistrate thereupon passed an order under Section 526 (8) adjourning the case to the" 3rd March, 1941, requiring the accused to execute a bond for Rs. 200, and fixing the 3rd of March, 1941, as the date within which the High Court should be moved for transfer. He further directed that the petitioner should pay Rs. 39-8-0 as the costs of the day to the prosecution; because the petitioner had from time to time procured unnecessary adjournments and had delayed the application for transfer. The question that arises for consideration in this petition is whether the Magistrate was competent to pass an order directing the petitioner to pay the costs of the day to the prosecution.

2. Under Section 344 of the Criminal Procedure Code, the Court has power to grant an adjournment at the request of a party upon such terms as it thinks fit and "such terms" would, of course, include payment of costs to the other side. Where however a party to a proceeding is desirous of moving the High Court for transfer, it is not necessary for him to ask for an adjournment. All he has to do is to intimate to the Court that he intends moving the High Court for a transfer. The Court then has to fix a day within which the applicant has to move the High Court and the security which the applicant has to furnish. If he executes the bond, then the Court is bound to grant an adjournment. In doing so, he does not grant an adjournment under Section 344, which permits the imposing of terms, but under Section 526 (8), which leaves no option to the Court to adjourn when once it has been intimated to the Court that the applicant intends to move the High Court for a transfer. The Sub-Divisional Magistrate had therefore no power to order the petitioner to pay the costs of the day to the prosecution. That being so, the order passed by the Sub-Divisional Magistrate on 17th February, 1941, has to be set aside. The money paid by the petitioner will be refunded to him.