28. The view that we are taking in the matter and bearing in mind the practice which is followed by the Courts below in the matter of grant of facility of home food to the under-trial prisoners whenever asked for and reasons to be recorded, the contention that the power to order facility of home food was exercised by the Courts below in terms of the unamended Sections 31 and 32 is to be held as totally devoid of substance. Those provisions do not deal with the powers of the Magistrate or the trial Courts. Those are the powers which are given to the Jail Administrative Authorities, and similar is a situation in relation to the amended provisions of law. The power to order home food vests in the Magistrate or the trial Court under Section 167 of the Code of Criminal Procedure and the same is not controlled by virtue of Sections 31 and 32 of the Prisons Act, 1894.
IN THE HIGH COURT OF BOMBAY
Criminal Writ Petition No. 1438 of 2000
Decided On: 02.08.2004
Asgar Yusuf Mukadam Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
R.M.S. Khandeparkar and R.S. Mohite, JJ.
Followed in
Followed in
Bombay High Court
The State Of Maharashtra vs Vikramsinh Dattusinh Chauhan on 10 November, 2017
Bench: A. M. Dhavale
1. Heard the leaned advocate for the petitioners and the learned APP for State. Perused the records.
2. The petitioners challenge the vires of Sections 31 and 32, as amended, of the Prisons Act, 1894, hereinafter called as "the said Act", being in violation of the provisions of Articles 14 and 21 of the Constitution of India and for further direction against implementation of those provisions of law.
3. Few facts relevant for the decision are that, at the relevant time, the petitioners were lodged in Bombay Central Prison at Arthur Road, as under-trial prisoners in Bomb Blast Cases No. 1 of 1993. They were detained for a period exceeding seven years at the time of the filing of the petition. Section 31 of the said Act, which dealt with the provisions relating to the availability of certain facilities regarding food, clothing, bedding and other necessaries to the under-trial prisoners and civil prisoners as well as Section 32 which dealt with restriction on transfer of good and clothing between certain prisoners, were sought to be amended by the Prisons (Maharashtra Amendment) Act, 2000 hereinafter called as "the Amendment Act" by introducing new provisions of law in place of the old Sections 31 and 32 of the said Act. Aggrieved by the consequences which would follow from the amendment to the said provisions of law, the same are sought to be challenged by the petitioners.
4. It is the case of the petitioners that in accordance with the provisions of unamended Section 31 and 32 of the said Act, the petitioners were receiving food from their respective houses. The food so supplied to the prisoners from their respective houses was examined by the prison staff and such facility was never misused, and the said facility was being availed for over five years prior to the filing of the petition.
5. It is the contention of the petitioners that the amended provision in Section 31 seeks to classify the non-convict prisoners in three categories viz. unconvicted criminal prisoners, satyagrahis and civil prisoners. Though the satyagrahis are also defined as unconvicted criminal prisoners having participated in non-violent public agitation, there is a clear discrimination sought to be made in their favour and against the petitioners i.e. unconvicted criminal prisoners by virtue of the amended provision inasmuch as that the satyagrahis and civil prisoners are permitted to have home food and other necessaries whereas no such facility is available to the unconvicted criminal prisoners. In other words, it is the case of the petitioners that the amended Section 31 seeks to deny the facility of getting home food. Section 32 of the said Act has been further amended to bring it in conformity with the provision contained in amended Section 31.
6. While assailing the amended provision, the learned advocate appearing for the petitioners submitted that the amended provision seeks to negate cardinal principles of criminal jurisprudence that the accused is deemed to be innocent until proved guilty, and further seeks to punish the under-trial prisoners even before the completion of trial and their guilt is judicially established. His further contention is that the differentiation sought to be made between the unconvicted criminal prisoners, satyagrahis and civil prisoners, violates Articles 14 and 21 of the Constitution of India. It is his further contention that denial of home food deprives the petitioners of their fundamental right guaranteed under the Constitution and, therefore, the amendment needs to be held as being ultra-vires constitutional provisions. The learned APP, on the other hand, submitted that at all times and even when the unamended Sections 31 and 32 were in force, the facility regarding food from private sources was granted only pursuant to the order of the Magistrate or the trial Court and not otherwise. She has further submitted that the amended provision in no way causes prejudice to the under-trials inasmuch as that the provisions of the said act does not debar the Magistrate or the trial Court from exercising its powers to direct the jail authorities to grant such facility to the under-trials. According to her, such facility was always granted unless there were cogent reasons to refuse the same She has further submitted that apart from making additional provision regarding Satyagrahis, there is no substantial change brought about by the amended provisions. According to her, power to grant such facility is implicit in the power of the trial court or the Magistrate in Section 167 as well as in Section 437 of the Code of Criminal Procedure while ordering remand of the accused or refusing bail to him. Attention has also been drawn to the decision of the Apex Court in D.K. Basu v. State of West Bengal, reported in MANU/SC/0157/1997 : 1997CriLJ743 and particularly the guidelines which have been laid down by the Apex Court in relation to the arrest or detention of the persons by police or detaining authority.
7. The petition basically relates to the claim of home food to the under-trials. The fact that for all these years the facility to have food from private sources to the under-trials was made available pursuant to the order of the Magistrate or the trial Court is not in dispute. Infact, the learned advocate for the petitioners has fairly conceded that such facility is normally made available to the under-trials pursuant to the orders of the Court either passed at the time of remanding the accused to the custody or pursuant to the application filed by the accused while he is in the custody. The contention of the petitioners however is that such facility was granted to the under-trials in exercise of powers under Sections 31 and 32 of the said Act as they stood prior to the amendment. His further contention is that the Courts below have refused to exercise such power pursuant to the amendment brought to Section 31 as the facility of home food to the under-trials is not included in the amended provisions of law. The contention is vehemently disputed on behalf of the respondents.
8. Section 31 and 32 of the said Act, as they stood prior to amendment, read thus:-
"31. Maintenance of certain prisoners from private sources. - A civil prisoner or an unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, food, clothing, bedding or other necessaries, but subject to examination and to such rules as may be approved by the Inspector General.
32. Restriction on transfer of food and clothing between certain prisoners. - No part of any food, clothing, bedding or other necessaries belonging to any civil or unconvicted criminal prisoner shall be given, hired or sold to any other prisoner; and any prisoner transgressing the provision of this section shall lose the privilege of purchasing food or receiving it from private sources, for such time as the Superintendent thinks proper."
9. The said provisions are sought to be amended by the Amending Act, and amended Section 31 reads as under:
"31. Maintenance of certain prisoners from private sources.- (1) An unconvicted criminal prisoner shall be permitted to maintain himself, and to purchase, or receive from private sources at proper hours, clothing and bedding but subject to examination and to such rules as may be approved by the Inspector General:
Provided that, if such prisoner is a Satyagrahi, who is remanded on account of his participation in a Satyagrahi (non-violent public agitation), he shall be permitted to maintain himself and to purchase or receive from the private sources at proper hours food, clothing, bedding or other necessaries, subject to examination and to such rules as may be framed by the Inspector General, with the approval of the State Government.
(2) A civil prisoner shall be permitted to maintain himself and to purchase, or receive from the private sources at proper hours food, clothing, bedding or other necessaries but subject to examinations and to such rules as may be approved by the Inspector General."
As regard Section 32, the amended provision reads thus:-
"No part of any clothing and bedding belonging to any unconvicted criminal prisoner, and no part of any food, clothing,bedding or other necessaries belonging to a civil prisoner or an unconvicted criminal prisoner who is a Satyagrahi, who is remanded on account of his participation in a Satyagraha (non-violent public agitation) shall be given, hired or sold to other prisoner; and any prisoner transgressing the provisions of this section shall lose the privilege of purchasing food or receiving it from private sources, for such time as the Superintendent thinks proper."
10. Undoubtedly, amended provision excludes the facility of the food from private sources to unconvicted criminal prisoners. According to the learned APP, such a provision has been found necessary on account of undue advantage being taken of the unamended provision to smuggle drugs, messages, weapons, etc. in the prisons for these prisoners or detenue thereby creating threat to the security of the other prisoners as well as to the prisoners themselves, and therefore, the Government was compelled to amend the said provision. It is her contention that in order to stop illegal activities which were sought to be carried out under the guise of supplying food from private sources, the appropriate restrictions were required to be imposed and they were accordingly imposed by amending the said provision. In that respect, attention is also drawn to the statement of objects and reasons of the Amending Act. On the other hand, it is the case of the petitioners that there is no material on record to disclose that the under-trial prisoners had misused the provisions or that there was any act disclosing threat to the security of the other prisoners on account of availability of the facility for supply of home food.
11. Undoubtedly, unamended provision of law in Section 31 permitted the unconvicted criminal prisoners as well as the civil prisoners to have home food subject to the examination and to such rules, as may be approved by the Inspector General; however, such facility is not provided to the under-trials under the amended Section 31. The facilities which are provided under the amended Section 31 to the unconvicted criminal prisoners are restricted to maintain themselves and to purchase or receive from private sources at appropriate hours the clothing and bedding, subject of course to examination and to such rules, as may be approved by the Inspector General. However, the facility for home food is conspicuously absent in the said provision of law. At the same time, such facility is continued to be available to the civil prisoners as well as to the prisoners who are remanded on account of their participation in non-violent agitation. Undoubtedly, the prisoners which are remanded on account of involvement in non-violent agitation as well as those who are civil prisoners have been classified in different categories from the one comprised of unconvicted criminal prisoners. There can be no grievance about such classification either being discriminatory or to be in violation of Article 14 of the Constitution. Indeed, the prisoners who are remanded merely on account of participation in non-violent agitation or those who are civil prisoners cannot be grouped in one and the same class to which unconvicted criminal prisoners belong. Besides, it is essentially for the authorities to deal with the aspect of the classification. Undoubtedly it should not disclose total arbitrariness or unreasonableness.
12. While dealing with the issue as regards the right to home food to the under trial prisoners, one cannot lose the sight of the well established law that even the convicts do not lose all their fundamental rights which the citizens are otherwise entitled to, excepting of course those which cannot be possibly indulged on account of the fact of incarceration. Obviously, on account of imprisonment, right to move freely or right to practice a profession which is otherwise available under Article 19(1)(b) or 19(1)(g) could be curtailed. Nevertheless, various other fundamental rights including the right to freedom of expression or to read and write subject to the limitations imposed on account of imprisonment, would continue to be enjoyed by the prisoners. The most important right to life guaranteed under Article 21 which includes prohibition against deprivation of such right except according to the procedure established by law, is always available to such prisoners. Reference to some of the decisions in that regard by the Apex Court would not be out of place.
13. In Sher Singh and Ors. v. State of Punjab, reported in MANU/SC/0147/1983 : [1983]2SCR582 , the Apex Court had ruled that the horizons of Article 21 are ever widening and the final word on its conspectus shall never have been said. It was further reminded that so long as life lasts, so long shall it be the duty and endeavour of the Court to give to the provisions of the Constitution, a meaning which will prevent human suffering and degradation.
14. In T.V. Vatheeswaran v. The State of Tamil Nadu, reported in MANU/SC/0383/1983 : 1983CriLJ481 , it was ruled that the Articles 14, 19 and 21 are not mutually exclusive and they sustain, strengthen and nourish each other and they are available to prisoners as well as free men and the prison walls do not keep out fundamental rights. With specific reference to Article 21 and the bar provided thereunder for deprivation of life and liberty, except in accordance with the procedure established by law, it was clearly ruled that such procedure must be just, fair and reasonable and referring to the expression "just, fair and reasonable procedure", it was held that it implies a right to free legal services where the prisoner cannot avail them. It implies a right to speedy trial, and above all, it implies humane conditions of detention, preventive or punitive. It was ruled that "procedure established by law" does not end with the pronouncement of sentence; it includes the carrying out dealing with a case wherein a capital punishment was imposed and the point sought to be raised before the Apex Court in the petition under Article 32 related to the claim for reformation in jail due to long lapse of time since the passing of sentence of death on the prisoner, and, on that count, the commutation of capital punishment to the imprisonment for life. Nevertheless, the ruling, in no uncertain terms, makes it clear that the expression "procedure established by law" under Article 21 of the Constitution would not permit the Court merely to pass an order of remand or to send the person to the custody or prison, but it envisages appropriate steps to ensure that such order would be given effect to without offending the right to life of the person ordered to be imprisoned or detained. In other words, when the person is sent to Jail, the Courts are not only empowered but it should be their endeavour to ensure, through the executing agency, prevalence of humane condition at the place of detention or imprisonment.
15. Constitutional Bench of the Apex Court in Sunil Batra v. Delhi Administration and Ors., reported in MANU/SC/0184/1978 : 1978CriLJ1741 held that Article 21 guarantees protection of life and personal liberty and though couched in negative language, it confers fundamental right to life and personal liberty. Relying upon the earlier decisions in the matter of Kharak Singh v. State of U.P., reported in MANU/SC/0085/1962 : 1963CriLJ329 and D. Bhuvan Mohan Patnail and Ors. v. State of Andhra Pradesh and Ors., reported in MANU/SC/0038/1974 : 1975CriLJ556 , it was held that the following explanation by Field, J. in Munn v. Illinois, (1877) 94 US 113, as regards the scope of the words, "life and liberty" in Vth and XIVth Amendments of U.S. Constitution are to some extent precursor of Article 21:
"By the term 'life' as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world ..... by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison."
It was further ruled that "personal liberty as used in Article 21 has been held to be a compendious term to include within itself all the varieties of rights which go to make personal liberties of the man other than those dealt with in Clause (d) of Article 19(1). The burden to justify the curtailment thereof must squarely rest on the State."
16. In Sunil Batra v. Delhi Administration, reported in MANU/SC/0184/1978 : 1978CriLJ1741 , it was held that ".....no personal harm, whether by way of punishment without affording a preventive, or in special cases, post facto remedy before an impartial, competent, available agency." It was also held that "the Courts have to make do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture."
17. In State of Andhra Pradesh v. Challa Ramkrishna Reddy and Ors., reported in AIR 2000 SC 2083, it was held that a prisoner, be he a convict or under-trial or a detenu, does not cease to be a human being, and even lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. It was further held that, on being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights. It was also held that though the present Act may classify the inmates of jail as convicts, under-trials and civil prisoners, none of the categories of the prisoners lose their fundamental rights on being placed inside the prison and the restrictions placed on their rights to movement are the result of their conviction or involvement in crime.
18. If one peruses the provisions of law comprised under various sections of Code of Criminal Procedure, it would reveal due adherence to the mandate of Article 21 of the Constitution. Section 49 of the Code clearly provides that "the person arrested shall not be subjected to more restraint than is necessary to prevent his escape." Section 436(1) of the said Code assures the persons accused of offence other than non-bailable, to be entitled to be released on bail, being prepared to furnish the same. Even in case of arrest of persons in non-bailable offence, the provision of law speaks of availability of bail on certain conditions. Section 437(1) of the said Code is very clear in that regard. In cases of non-bailable offences, in certain cases, the persons accused of such offences also are entitled to be released on bail even during the pendency of the inquiry in terms of Sub-section (2) of Section 437.
19. Section 167 of the Code of Criminal Procedure deals with the procedure which is required to be followed in a case wherein the investigation is not completed within twenty four hours. Under the said provision of law, the Magistrate before whom the accused is produced, whether he has jurisdiction or has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole, and when he finds that he has no jurisdiction to try the case, may authorise detention of the accused for a term not exceeding 15 days in the whole, and when he finds that he has no jurisdiction to try the case or commit the same for trial to Sessions Court, and he considers the detention unnecessary, he may order to forward the accused before the Magistrate having such jurisdiction without ordering release of the accused. It further provides certain guidelines for exercise of such powers of the Magistrate to detain the accused in custody. Sub-section (2) along with its provisos (a) and (b) read thus:
"167(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
PROVIDED that, -
[(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding -
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter J;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him."
20. While the main body of Sub-section (2) quoted above empowers any Magistrate before whom the accused is produced, irrespective of the fact whether he has jurisdiction to try the case or not, to authorise detention of the accused, from time to time, for a period not exceeding 15 days, and in case he has no jurisdiction, he can also direct the accused to be forwarded before the Magistrate who has jurisdiction to try the accused. Proviso (a) specifically empowers the Magistrate to continue the detention of the accused in custody beyond the period of 15 days if he is satisfied of existence of adequate grounds for doing so. Undoubtedly, it also provides that no Magistrate shall order detention of the accused in custody for a period exceeding 90 days where the investigation relates to an offence punishable with death or life imprisonment or imprisonment for a term not exceeding 10 years and above and for a period of 60 days where the investigation relates to other offence. It also further provides that after 90 of 60 days, as the case may be, the accused is entitled to be released on bail if he is prepared to furnish the same. Clause (b) of the Proviso specifically provides that the order of detention should not be passed unless the accused is produced before the Magistrate.
21. The provision of Sub-section (2) of Section 167 of the Code of Criminal Procedure therefore empowers the Magistrate to continue the detention of the accused in custody for a total period of 90 days or 60 days, as the case may be, when there are adequate grounds for doing so. The expression "adequate grounds" relates essentially to the reasonableness and justification for continuation of detention of the accused in custody. But the same cannot be considered ignoring the provisions of Section 49 of the Code of Criminal Procedure as also the constitutional mandate in relation to the provision for basic needs of the human being. It is pertinent to note that no Magistrate is empowered to authorise detention in any custody under the said provision unless the accused is produced before him. This is not an empty formality. It is mandatory for the investigating agency to ensure production of the accused before the Magistrate before seeking detention of such person in custody. Obviously, this is in the interest of the accused. It i snot merely to ensure avoidance or ill treatment to the accused at the hands of the investigating agency but also to facilitate the accused person to bring to the Magistrate his grievances including the need for making provision to satisfy his basic needs and reasonable requirements as also to ensure that the accused is not subjected to restraint more than necessary. The food is necessary for the survival of human being, and being so, the Magistrate who is required to get himself satisfied about the existence of adequate grounds for continuation of detention of the accused in custody is obviously empowered to grant the facility of home food to the under-trial while he is in custody, albeit which could be subject to conditions and bearing in mind the facts and circumstances of each case.
22. The need for home food may arise for various reasons. A person may not be able to digest the food other than the one prepared in accordance with his health conditions or for other medical grounds. It is not to say that the food served in prisons is of sub-standard quality or that it is not the good food. Infact, the petitioners have not been able to make out any case to that effect. Besides, if the food is of sub-standard quality then it would be of the same quality for all inmates of the jail including the convicts.
23. It is not only the power of the Magistrate and the Court but it should be their endeavour to ascertain through the executing agency the availability of basic needs to the person to be detained in the custody. The same is implicit in the power to order detention and it would include passing of an appropriate order in relation to such basic needs to the under-trials detained in jail, as and when occasion arises. Undoubtedly, the order has to be a speaking order disclosing the grounds for ordering the facility in relation to the basic needs otherwise than in the manner provided in the jail by its authorities. Being so, whenever an application is filed by an under-trial prisoner for grant of facility for home food, the Magistrate will have power to pass an appropriate order on such application after hearing the authorities and giving reasons for grant of such facility to such person. This power is implicit in the power to order detention or continuation of detention of the accused in custody either at the time of investigation or on filing of the charge sheet on conclusion of the investigation and till the disposal of the trial.
24. The Apex Court in Neelabhati Bahera v. State of Orissa, reported in AIR 1993 SCW 2366, had ruled that:
"It is axiomatic that convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted by law, which can be imposed on the enjoyment of the fundamental rightly by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law."
25. In Chameli Singh v. State of Uttar Pradesh, reported in MANU/SC/0286/1996 : AIR1996SC1051 referring to Article 21 of the Constitution held that the requirements of a decent and civilized life would include the right to food, water and decent environment, and ruled that:-
"In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilized society, implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society."
26. The Apex Court while dealing with a case relating to custodial death of jail inmates in D.K. Basu's case (supra) has laid down the guidelines to be followed in all cases of arrest or detention as preventive measures and inter alia directed that the arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory Director, Health Services should prepare such a panel for all Tahsils and Districts as well, and further that the arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
27. It is to be remembered that, as rightly submitted by the learned advocate for the petitioners, the cardinal principles of criminal jurisprudence is that a person accused of an offence is deemed to be innocent until he is proved guilty. The provision of law, as they stand comprised, under Section 167 of the Code of Criminal Procedure, therefore, discloses implicit power in favour of the Magistrates and the Courts before whom the accused is produced for remand or continuation of detention of the accused in custody, to order the facility of home food on being requested for by such accused and on being satisfied about the need for grant of such facility. Undoubtedly, the respondents would be entitled to take appropriate steps to ensure that the drugs, messages, weapons, etc. are not transported inside the jail under the guise of supplying home food to the under-trials, and, in case, any such mischief is brought to the notice of the Court, nothing would prevent the Court or the Magistrate either to refuse such facility or even to recall the order already passed granting such facility, albeit, after hearing the concerned accused and in extreme urgency, even ex parte subject to confirmation after hearing the accused.
28. The view that we are taking in the matter and bearing in mind the practice which is followed by the Courts below in the matter of grant of facility of home food to the under-trial prisoners whenever asked for and reasons to be recorded, the contention that the power to order facility of home food was exercised by the Courts below in terms of the unamended Sections 31 and 32 is to be held as totally devoid of substance. Those provisions do not deal with the powers of the Magistrate or the trial Courts. Those are the powers which are given to the Jail Administrative Authorities, and similar is a situation in relation to the amended provisions of law. The power to order home food vests in the Magistrate or the trial Court under Section 167 of the Code of Criminal Procedure and the same is not controlled by virtue of Sections 31 and 32 of the Prisons Act, 1894. In this view of the matter, it is not necessary to deal with the issue of vires of the amended Sections 31 and 32 of the said Act sought to be raised by the petitioner. Suffice to observe that the petitioners are entitled to move before the concerned trial Court, and if such application is field, the concerned Court should pass an appropriate order in that regard considering the facts and circumstances of the case.
29. For the reasons stated above, the petition is allowed in above terms and rule is made absolute accordingly with no order as to costs.
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