Imposition of Cost in Criminal Proceedings

IMPOSITION OF COST IMPOSITION OF COST IN CRIMINAL PROCEEDINGS Written By Zaffar Iqbal, Civil Judge 1st Class Research Officer Lahore High Court, Lahore LLM Punjab University "Costs" is a pecuniary allowance, made to the successful party (and recoverable from the losing party), for his expenses in prosecuting or defending an action or a distinct proceedings within an action1. The Law Society of Prince Edward Island (1988) the Canadian Court of Appeal described costs as "the sum of money which the court orders one party to pay another party in an action as compensation for the expense of litigation incurred. The definition continues to the effect that costs are awarded as compensation (i.e. reimbursement); there is, unlike damages, no restitutio in integrum, that is no concept in costs as there exists in damages, that the injured person should be placed, in so far as money can do so, in the same position as he occupied before the injury was suffered."2 Halsbury's Law of England states that the court should have regard to the following circumstances while deciding the question of costs:3 "i) The conduct of all the parties; ii) Whether a party has succeeded on part of his case, even if he has not been wholly successful; and iii) Any payment into court or admissible offer to settle made by a party which is drawn to the court's attention. The conduct of the parties includes: (a) Conduct before as well as during the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol; (b) Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) The manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) Whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim." In Vinod Seth v. Devinder Bajaj and another [(2010) 8 SCC 1] the Supreme Court of India held that the provision of costs is intended to achieve the following goals: a. It should act as a deterrent to vexatious, frivolous and speculative litigations or defences. The spectre of being made liable to pay actual costs should be such, as to make every litigant think twice before putting forth a vexatious, frivolous or speculative claim or defence. b. Costs should ensure that the provisions of C.P.C., the Evidence Act and other laws governing procedure are scrupulously and strictly complied with and that parties do not adopt delaying tactics or mislead the court. c. Costs should provide adequate indemnity to the successful litigant for the expenditure incurred by him for the litigation. This necessitates the award of actual costs of litigation as contrasted from nominal or fixed or unrealistic costs. d. The provision for costs should be an incentive for each litigant to adopt alternative dispute resolution (ADR) processes and arrive at a settlement before the trial commences in most of the cases. However, the Supreme Court emphasized that the provisions relating to costs should not obstruct access to courts and justice. The costs should not be a deterrent for the people with genuine claims and for those members of the weaker sections of the society whose rights have been affected to approach the courts. 21. The Supreme Court of Pakistan highlighted the importance of imposition of costs in Khurshid Ahmad Naz Faridi v. Bashir Ahmad and 3 others4. It said: "Costs are granted to a person who succeeds in a litigation. Such costs are to be paid by the unsuccessful party. The object of granting such costs may be two-fold. One, to compensate the aggrieved party, who in successful assertion/defence of his right, has been put to unnecessary litigation and harassment. The other object is to penalize a party who may have initiated any action or passed the order in complete disregard of the obvious and glaring facts and provisions of law which a reasonable person would not do unless he acts with highhandedness, arbitrarily, mala fide or ulterior motive." Adjournment during criminal proceedings with subject to cost has always been important for the courts. In Gulzar Ahmad and others v. The State, it has been held that needless to observe that the Code of Criminal Procedure empowers the Criminal Courts to order an accused if he asks for adjournment, to pay costs of such adjournment by way of compensation5. In order to interpret "terms as it thinks fit" occurring in section 344(1) of the Code of Criminal Procedure, the court has held in Dr. Manzoor Hussain and others v. The State that under section 344 (1) of the Code of Criminal Procedure the Court may adjourn the hearing from time to time on such "terms as it thinks fit". This makes it clear that, no doubt, the Criminal Courts are empowered to order the accused, if he asked for an adjournment to pay costs to the complainant, but this power should not be exercised in such a way as to place obstacle in the way of the accused properly defending himself6. In case of Muhammad Shahid Yousaf v. The State and others, the court has elaborated the significance while holding that it is well settled that at the time of interpreting a provision of law, approach is to be kept as dynamic, purposive and meaningful, while also keeping in view prevailing circumstances, need of the time, challenges being faced and to be faced in future and of course "safe administration of justice", therefore, words "on such terms (mentioned above)" used in Section 344, Cr.P.C. is not without any significance and can be safely interpreted as including power/authority to impose costs while granting adjournment and such power may be considered as inherent in the Court for safe administration of justice, otherwise, aforementioned words would become redundant; it goes without saying that such interpretation will enhance the cause of justice, minimize unnecessary adjournment and save the system of administration of justice7. The courts have imposed costs as a tool for deterrence on the party concealing material facts. In Zulfiqar Ali v. Province of Sindh, the court has observed that the petitioner has concealed material facts regarding search hence cost of Rs. 50,000/- was imposed which shall be paid to proposed accused8. In Khurram Imtiaz v. Addl. Sessions Judge, Islamabad and 3 others, the court has imposed cost on misusing provisions of Section 22-A, Cr.P.C and concocted litigation and filing successive petitions under section 22-A/B, Cr.P.C.with false affidavits9. In Baz Muhammad Khan v. The SP Chamkani, Peshawar and others, the court has imposed cost on petitioner who was an employee of Sui Northern Gas Pipe Line Company and already been proceeded against departmently for unauthorizedly lodging FIR against certain persons on the allegation of gas theft but again filed complaint before Ex-officio Justice of Peace for registration of FIR regarding gas theft which complaint was dismissed.10 When we talk about imposition of cost in criminal proceedings we find that criminal proceedings under section 145, Cr.P.C. are not an exception. The court has elaborated the concept of imposition of cost in criminal proceedings under section 145 in Deen Muhammad and others v. Assistant Commissioner and S.D.M., Shahdadpur and others that the award of costs is not alien to the criminal jurisprudence. There are situations where costs are awarded; such as under section 148(3), Cr.P.C. The High Court can also impose costs under section 491(2), Cr.P.C. as provided under rule 17 (previously rule 10) of the High Court Rules and Orders, Chapter 4-F, Volume V, which reads:-- "In disposing of any such rule the Court may in its discretion take an order for the payment by one side or the other of the costs of the rule." Section 547, Cr.P.C. deals with recovery of moneys other than fine11. In Dwigendra Nath Moitra v. Abdul Kashem Biswas and another, it has been held thatthe learned Magistrate could not refuse awarding costs when he came to the conclusion that the first party was entitled to the same and having regard to the materials before him12. The courts in Pakistan while hearing Writ of Habeas corpus have imposed costs when it appears that writ is false and frivolous or the petitioner has abused the process of law. In Muhammad Ramzan v. The State and 7 others, the court has observed that the petitioner has filed false and frivolous petition on the basis of untrue facts and forged documents, which has resulted into the wastage of precious time of the Court and general public, therefore, petition was dismissed with the cost of Rs.300,000/- (Rupees Three Hundred Thousand Only)13. In Mehr Ashraf and another v. Station House Officer and others. The Petitioners have shamelessly abused the process of law so they were held liable to be burdened with heavy costs of sum of Rs.200,000/-14. In Badaruddin v. Senior Superintendent Police Noushero Feroz and 7 others, the court has imposed cost on the petitioner for filing writ petition for recovery of alleged detenue when at the time of disposal of earlier petition, marriage between him and alleged detenue stood dissolved and petition was filed in order to exert illegal pressure upon the family of alleged detenue15. The court while hearing case titled Malik Nazeer Hussain v. Sessions Judge, Lahore and others imposed cost on failure of the petitioner to produce the minor in the court despite his undertaking in that behalf and finding conduct of the petitioner highly objectionable as he did not seem to have any regard for the orders of the court as mere filing of an application before the Guardian Court by the respondent/ mother of the minor, was not at all a bar to pass an order under section 491, Cr.P.C., when welfare of suckling baby aged 14 months was at stake16. It is the constitutional duty of the courts to protect liberty and compensate an individual whenever he is found in illegal dentention. In Mst. Khatoon Bibi v. The State and 2 others, it was held that an individual was kept in captivity unlawfully by a police official, and the Courts have to come forward with a pragmatic approach for the protection of fundamental rights guaranteed under Articles 9, 10 and 14 of the Constitution and must not hesitate in awarding even cost/ compensation to the victim to be paid by none other than the delinquent police officials17. In Tahir Mehmood Gujjar, D.S.P., C.I.A., Gujranwala v. The State and 3 others, it has been held that no bar or prohibition existed in the relevant law to pass any order to police official to pay monetary compensation to detenu who was deprived of his freedom. Ex-Officio Justice of Peace was to first determine through summary inquiry that who was responsible for illegal detention of detenus or get it determined from any Magistrate through inquiry under S.4(k), Cr.P.C. or from any police official of higher rank like Regional Police Officer and then to pass order for awarding compensation18. In Mst. Saeeda v. S.S.P. Larkana and 3 others, it has been categorically held that law enforcement agencies should respect law and rights guaranteed to citizen under the Constitution and High Court advised Inspector-General of Police being head of the department in provincial hierarchy, to adopt appropriate measures to reform his department by eradicating such highhandedness and excess. High Court imposed special costs upon police officer concerned and directed to pay the recovered amount to the detenues equally, as token of compensation for their illegal detention19. In Ahmad Bakhsh v. Saeed Ahmad, Inspector/S.H.O Police Station Uch Sharif, the Court finding detention of the detenu in police station being illegal and improper set him at liberty and Police Officer having deprived the detenu of his liberty in violation of law, justice and fair play, his mercy plea was ignored and he was directed to pay costs in the sum of Rs.2,000 to the petitioner20. In Aagha Khuda Bux, Advocate v. The State and 3 others, when detenu was found to be in police lock-up by Bailiff of Court then Station House Officer of police station was directed to pay a sum of Rs.5,000 as cost to detenu and Superintendent of Police was directed to submit enquiry report against concerned police officials to the High Court21. In Mehboob Alam v. Station House Officer and 2 others, it was observed that detenu against whom no criminal case was registered was found by the bailiff confined in the police lock-up without his arrest having been shown in the daily diary of the police station so he was set at liberty and Station House Officer of Police Station in violation of law, justice and fairplay had deprived the detenu of his liberty which being a serious matter no exception could be taken thereto---Police Officers were taking pleasure and pride in violating the human rights by taking the law in their hands and depriving the people of their liberty without legal justification22. In Nasir Abbas v. Mian Muhammad Bakhsh and 3 others, when the detenue was produced in Court then she stated that she never married with the petitioner and she was not his wife and that she would like to go with her father with whom she was living. The court concluded that she was wrongly shown as a detenue in the house of her father by moving the present petition apparently with some ulterior motive in order to humiliate her and her family hence petition being totally misconceived was dismissed with costs of Rs. 5,000 and detenue was at liberty to accompany her father according to her option23. In Mst. Mumtaz Begum v. Zawar and another, the court appointed bailiff who recovering alleged detenue/girl from her uncle's house when her rukhsati arrangements were actually in progress one day after her marriage and the allegations of the petitioner appeared to be reckless and process of law was utilised for ulterior motives and for personal aggrandisement on such solemn occasions in life of an innocent girl so petition having turned out to be motivated, unjustified and baseless dismissed and petitioner was burdened with costs of Rs. 1,000.24 It is heartening to see the prevalent trend of imposing cost to deter the parties alleging false and reckless allegation, concealing material facts, abusing process of law and above all utilizing law for satisfaction of their own egos. Our constitution always makes us mindful for equal protection of law and equality before law. But there is an irresistible conclusion that imposition of cost varies in amount from case to case and the courts have not clearly laid down certain areas of false allegations, concealing facts, leading untrue facts etc where cost shall be imposed necessarily and without any exception. In order to achieve specific goal what imposition of cost likely to have, there is an emergent need for express and specific provisions of law expressly describing grounds and areas for cost. Undoubtedly, our criminal proceedings need to be more cost efficient for serving better administration of justice.