Baleshwar Prasad Singh vs Narain Prasad Marwari and Others

Shambhu Prasad Singh, J.—The Additional Sessions Judge, 1st Court Monghyr, has made this reference for modifying the order dated the 14th of February, 1966. of Shri M. Huasain, Magistrate, assessing the amount of cost payable by the second party and third piety to the first party in a proceeding u/s 145, Criminal P.C., in pursuance of an order dated 19.9.1994, of Shri Rastogi, another ''Magistrate u/s 148 of the Code. The order in the proceeding u/s 145 of the Criminal P.C. was passed on 81.1.1933 and thereafter the first party filed an application for award of cost on the 6th of March, 1963. The total amount of costs awarded by the Magistrate was Rs. 4,771/- According to the Additional Sessions Judge the amount was unreasonable and the first party should have been allowed only Rs. 2,250/- as cost.

Mr. Shivanandan Roy appearing in sup. port of the reference urged a ground not mentioned in the letter of reference that Shri Hussain could not pass any order as to costs. He relied in support of his contention on Section 148 Sub-section (3) of the Criminal P.C., which says that only the Magistrate passing the decision under Sections 145, 146 or 147 of the Code may direct the payment of costs. There appear to be no substance in this contention inasmuch as that it was Shri Rastogi himself who had passed the order u/s 145 of the Code, directed for payment of cast and Shri Hussain merely ascertained the amount. In the case of Sarju Prasad Sao Vs. Ram Chandra Singh and Others, it was held that u/s 148(3) of the Corte the direction for one party or the other to pay the cost and to pay it in whole or in part or in a certain proportion must be given by the Magistrate passing the decision u/s 145 or the other sections of Chap. XII of the Code and there was nothing in this provision to show that even the actual assessment cannot be made by another Magistrate. It was further hold in that case that the successor Magistrate can u/s 559(1) do the actual work of assessment of cost in accordance with the direction of the Magistrate who passed the final order u/s 145 or other sections of that Chapter.

Shri Rastogi in his order dated 19.9.1961, said that the prayer of the petitioner that is the first party regarding the cost was reasonable and was allows 1. Thereby he intended to order that the first party were entitled to all the coats they could prove to have incurred of Shri Hussain has really reduced any amount claimed by the first party, the third party or second patina-not make any grievance o� it. The order of Shri Hussain therefore assuming the amount of cost cannot be held to be illegal.

It was next contended by Mr. Roy that an order for payment of cost must be passed at the time of passing of the final order u/s 145 of the Code and since Shri Rastogi did not pass any order for casts at that time, his order dated 19.9.1954 allowing costs to the first party in itself illegal. There is nothing u/s 148(3) to show that order far costs must be passed at the time of passing of the final order u/s 145 of the Code. There is a divergence of judicial opinion on this point, some decisions holding that the order for costs must be passed at the time of passing of the final order u/s 145 or other sections of the Code, others holding that it should be passed within reasonable time. In cases there it was intended by the framers of the Code that some consequential order should be passed at the time of the parsing of the main order itself they have specifically said so in the Code. Reference may be made in this connection to Section 250 of the Criminal P.C. according to which show cause notice for payment of compensation must be issued by the order of discharge or acquittal itself. Therefore the decisions which have taken the view that order for payment of coats u/s 148(3) of the Code can be passed within reasonable time appears to be correct.

The Magistrate in the in3tant case appears to have passed an order for casts after twenty months but the first party were not to be blamed for that. They made their application within the two months of the final order u/s 145 of the Code and they cannot be allowed to suffer on account of the laces on the part of the Magistrate in passing the necessary order on their petition. There is yet another difficulty in the way of the second party and the third party on this point. They did not go up to the higher Courts against the order dated 19.9.1964, and they cannot be allowed to challenge that order now.

Mr. Rajgarhia appearing for the first party attempted to show that the learned Additional Sessions Judge is not correct in observing that the costs assumed by Shri Hussain were unreasonable but he failed to do so. The learned Additional Sessions Judge appears to have taken a correct view of the matter and he baa rightly observed that the amount of costs assumed by Shri Hussain was high and unreasonable and the amount should have been Rs. 2,250/- only. I entirely agree with the reasons given by the learned Additional Sessions Judge in support of his view in his letter of reference. There can be no doubt that the claim of the 1st party was exaggerated.

For the foregoing reasons the reference is accepted and the amount of costs awarded by Shri Hussain by his order dated 14.2.1966 is reduced from Rs. 4,77 J A to Rs. 2,250/-.