Hira Mahton and Others vs Rajkumar Mahton and Others

Adami, J.—The only question which arises in this application is in regard to an order for payment of costs. The Magistrate in finding possession in favour of the opposite party in proceedings u/s 145 Criminal Procedure Coda, directed the petitioners to pay costs of Rs. 100. It is urged that this order is without jurisdiction inasmuch as u/s 148 Criminal Procedure Code, the Magistrate could only include in the tests awarded the Pleader''s fees and the costs for witnesses. The Magistrate has not mentioned how the sum of Rs. 100 was computed or that he has made any inquiry as to what the actual Pleader''s fees and the costs of the witnesses were.

It hag been decided by a Judge of this Court (Sultan Ahmad, J.) in Jhaman Mahton v. Thakuri Mahton 57Ind. Cas. 449 : 1 PLT 369 : 21 CriLJ 625 : 2 UPL (Pat) 192 that an order such as the present ore is without jurisdiction and must be set aside, and be based his finding on the case of Udoy Narain Chakravarty v. Satish Chandra Chattaraj 14 CWN 23 notes. There is an unreported case of this Court (Girdhari singh v. Bhalu Gope, Criminal Revision No, 300 of 1922 : in whish Sir John Bucknill, J., his set aside an order similar to the present one and directed that the case should be remanded to the Magistrate for determination of the costs according to law. It is quite clear, therefore, that the Magistrate could not in a case like this arbitrarily decide what the amount of costs to be paid should be. He must confine the costs to Pleader''s fees and the costs of witnesses.

The order, therefore, directing Rs. 100 to be paid as casts must be set aside and the case must be remanded to the Magistrate for an assessment of costs according to law.

The application if, therefore, allowed to the extant mentioned above.