Manglu Sahu and Others vs Ramdhani Tamboli

Fazl Ali, J.—The petitioners were second party in a proceeding u/s 145, Criminal P.C. which was decided against them by Babu Modeshwar Prasad Singh. Honorary Magistrate of Samastipur, on 13th October 1927.

On 4th November 1927, the opposite party filed an application before the Sub-Divisional Officer-praying that costs may be awarded to-them in connexion with the proceeding, u/s 145 and this application was referred to the trying Magistrate for disposal. On 13th July 1928, the learned-Sub-Divisional Officer himself passed are order awarding a sum of Rs. 100 as costs to the opposite party.

The present application is directed against this order, and it is contended before me that the order cannot be supported in law, (1) because the Sub-Divisional Magistrate had no jurisdiction to pass an order u/s 148 when the case had been decided by another Magistrate: (2) because the learned Sub-Divisional Magistrate has awarded a sum of, Rs. 100 without making any enquiry as to what the actual pleader''s fees and the costs of the witnesses were; and (3) because the judgment in the proceeding u/s 145 was delivered on 13th October 1927, whereas the order u/s 148 was passed by the learned Sub-Divisional Magistrate about nine months later on 13th July 1928. The contentions raised by the petitioner are supported by authorities and must prevail.

In the case of Nafar Chandra Pal v. Sidhartha Krishna 24 C.W.N. 672 it was held that the order u/s 148, although it may be made subsequent to the passing of the judgment, must be made by the Magistrate, who tried the original case. In the same case it was pointed out that an application for costs which is not made at the time the judgment is delivered ought to be made within a reasonable time. In the case of Jhaman Mahton v. Thahuri Mahton [1920] 1 P.L.T. 369 it was clearly pointed out that u/s 148, Criminal P.C., the Magistrate could award costs to the successful party; but it should be based on proper materials, namely, the actual costs incurred as pleader''s fees and costs of witnesses. In view of these authorities I must make the rule absolute and set aside the order passed by the learned Sub-Divisional Magistrate.