Doraikannu Padayachi vs Kaliaperumal Padayachi

N. Krishnaswami Reddy, J.—Tats petition has been filed against the order of the Sub-Divisional Magistrate, Ariyalur, awarding costs of Rs. 200 to the respondent u/s 148(3), Criminal Procedure Code in Criminal Miscellaneous Petition No. 50 of 1967.

What happened in this case was this : The Sub-Divisional Magistrate, Ariyalur, in M.C.No. 58 of 1965 passed order on 28th June, 1965, declaring that the respondent herein was in possession of the disputed property. The revision petitioner preferred Crl. R.C. No. 879 of 1965 against the said order in this Court and the case was remanded for fresh disposal after fresh enquiry. The learned Sub-Divisional Magistrate, Pudukottai, in M.C.No. 69 of 1966 who took up the enquiry after the remand again found by his order dated 31st January, 1967, that the respondent herein was in possession of the disputed land.

At the time of delivering the order, he did not award costs.

The respondent, after the order was passed filed an application for costs u/s 148 (3), Criminal Procedure Code, and the learned Sub-Divisional Magistrate ordered the revision petitioner on 16th March, 1967, to pay a sum of Rs. 200 to the respondent in Criminal M.P.No. 50 of 1967. Subsequent to this order, the respondent filed Crl.M.P. No. 639 of 1967 before the Sub-Divisional I First-Class , Magistrate, Ariyalur, for recovery of costs awarded in Crl. M.P.No. 50 of 1967.

The revision petitioner contends that the order passed in Crl.M.P. No. 50 of 1967 awarding costs subsequent to the original order passed u/s 145, Criminal Procedure Code, and the proceedings taken in Crl.M.P. No. 639 of 1967, are illegal. It is contended by him that there is no provision in the Criminal Procedure Code to award costs subsequent to the order; but if costs are awarded, it must be provided in the original order itself. Though there appears to be some force in the contention, on a scrutiny of Section 148 (3), Criminal Procedure Code, it appears that there is no prohibition for the Court to award costs even subsequent to the passing of the original order. Section 148 (3), Criminal Procedure Code, runs as follows:

When any costs have been incurred by any party to a proceeding under this Chapter the Magistrate passing a decision u/s 145, Section 146 or Section 147 may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion. Such costs may include any expenses incurred in respect of witnesses, and of pleader''s fees, which the Court may consider reasonable.

This clause does not say that costs must be awarded at the time when the order is made. What it says is that the Magistrate passing a decision u/s 145 etc. may direct, by whom costs shall be paid etc. There is no emphasis in the clause as regards the time when the order for costs has to be passed. There is nothing improper for a Court to award costs even subsequent to the order passed u/s 145, Criminal Procedure Code; but such application must be made within reasonable time and it will Very much depend upon the discretion of the Courts which must of course be fairly and judicially exercised.

In Vythianada Tambiran v. Mayandi Chetty ILR (1906) Mad. 373, Subramania Ayyar, J., held as follows : "An award of costs u/s 148 (3) of the Code of Criminal Procedure should, in the usual course, be contemporaneous with the decision of the main question. Where, however, circumstances require the postponement of the award of costs, it should be made within a reasonable time after the disposal of the principal subject of the proceeding, in the presence of both parties.

In that case, the order u/s 145, Criminal Procedure Code, was passed on 30th June, 1905 and on 3rd July, 1905, the application for costs was made. It was held that the application was made within reasonable time. This decision was followed in Manglu Sahu and Others Vs. Ramdhani Tamboli, , it was held in the said decision that the application for costs must be made within a reasonable time. In that case, the order u/s 145, Criminal Procedure Code, was passed on 13th October, 1927. The application for costs was made on 4th November, 1927, about three weeks after the original order was passed.

Lakshmana Rao, J., in Nariah v. Krishnamurthi(1938) M.W.N. 184, followed the decision in Vythianada Tambiran v. Mayandi Chetty ILR (1906) Mad. 373, and held that the award of costs should be either contemporaneous or should be made within a reasonable time after disposal of the case u/s 145, Criminal Procedure Code. In that case, the order u/s 145, Criminal Procedure Code, was passed on 31st February, 1937. The costs were awarded on 6th January, 1938. Nearly about 10 months later. Lakshmana Rao, J., held that the costs were not awarded within reasonable time. Unfortunately, in a subsequent decision by Lakshmana Rao, J., in Thoonga Vedan alias Chinnama Naicken and Others Vs. Perumal Goundan and Others, , he contradicted himself from his prior decision and stated that when there was no order as to costs in the decision u/s 147, Criminal Procedure Code, the award of costs by a subsequent order cannot be supported. Neither his earlier decision nor the decision of Subramania Ayyar, J., in Vythianada Thambiran v. Mayandi Chetty ILR (1906) Mad. 373, was brought to his notice.

In Chandrama Rai and Others Vs. Harbans Rai and Others, , a Division Bench held that even a successor to the Magistrate who passed a decision u/s 145, Criminal Procedure Code, can deal with the matter of costs subsequently. I respectfully agree with the decisions in Vythianada Tambiran v. Mayandi Chetty ILR (1906) Mad. 373, and Manglu Sahu and Others Vs. Ramdhani Tamboli, , and the earlier decision of Lakshmana Rao, J., in Nariah V, Krishnamurthi (1938) M.W.N. (Crl.) 184.

In the result, the Criminal Miscellaneous Petition is dismissed.