Ram Jag Rai vs Lakshmi Missir Ors.

Kanhaiya Singh, J.—In two separate proceedings u/s 145 of the Code of Criminal Procedure orders were passed on 19-11-1958. In one of the proceedings, an application for determination of costs under Sub-section (3) of Section 48 of the Code of Criminal Procedure was made on 13-12-1958. The order awarding costs in this proceeding was passed on 11-11-1959. The validity of this order is challenged in Criminal Revision No. 611 of 1960.

In the other proceeding, a similar application for determination of costs wag made on 12-12 1958 and orders awadirng costs were passed on 12-11-1959. This order is the subject matter of dispute in Criminal Revision No. 612 of 1960.

It will appear from the above that in the proceedings u/s 145, Criminal Procedure Code, no order was made for payment of costs. Applications for grant of costs were made subsequently. The contention of learned Counsel for the petitioners in both the cases is that an order for costs, should have been made by the Magistrate simultaneously with the order in the proceedings u/s 145, Criminal Procedure Code, and, therefore, subsequent applications for determination of the costs were illegal and the orders as to costs made on such applications are also illegal.

In support of his contention, he relied upon a decision of a learned single Judge of the Madras High Court in the case of Thoonga Vedan alias Chinnama Naicken and Others Vs. Perumal Goundan and Others, . In this case it has been laid down 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. This decision, however, has not been followed in the Madras High Court itself.

In the case of Bagavandas Moopanar Vs. Muhammad Gani Rowther, , Horwill, J. observed that as no time limit is laid down in Section 148(3), there is no objection to an order as to costs being passed on a subsequent application. A Division Bench of the Calcutta High Court has laid down in the case of Nafar Chandra Pal Choudhury v. Sidhartha Krishna Mazumdar 24 Cal WN 672 : AIR 1920 Cal 320 as follows: "in a case u/s 145 an order for costs may be made subsequent to the passing of the judgment. All that the law requires is that the order should be made by the same Magistrate".

The learned Judges further laid down that "an application for costs if not made at the time the judgment is delivered should be filed within a reasonable time". It will appear that in a proceeding u/s 145, Criminal Procedure Code, the magistrate declared the possession of the first party. The order which the magistrate made in favour of the first party was dated 2-6-1919. In the judgment which the magistrate gave ''on 2-6-1919, he made no order with regard to the question of costs. He gave no direction and his Judgment did not deal with it in any way. Subsequently, an application was made for determination of the costs on the 30th August, that is, two months and 28 days after the order was made. In these circumstances, Sanderson, C.J. has observed as follows:

In my judgment that section does not provide that a Magistrate who gives a decision under. Section 145, if he desires to make an order as to costs, must make the order at the time he gives his decision on the merits. In my judgment as long as an order for costs is made by the same Magistrate who passes the decision u/s 145, Section 146 or Section 147, he has jurisdiction to make the order". This case is, therefore, a direct authority for the proposition that although in the order made u/s 145, Criminal Procedure Code, no order as to costs was made, an application may be made subsequently for the determination of costs and all that is necessary for the validity of the application is that it should be made before the same magistrate and within a reasonable time.

This case was followed by this Court in the case of Manglu Sahu and Others Vs. Ramdhani Tamboli, . Following the aforesaid Calcutta decision it has been laid down that order u/s 148 for costs must be made by the magistrate who tried the case u/s 145 and the application for costs must be made within a reasonable time. The decision of a Bench of this Court in Sarju Prasad Sao Vs. Ram Chandra Singh and Others, does not at all affect the efficacy of the decision in the aforesaid cases.

Any way, in this case it has not been laid down that an order for costs must be passed along with the order made in the proceeding u/s 145, Criminal Procedure Code, or that in the absence of such an order, a subsequent application is incompetent. In view of these authorities, the contention of learned Counsel that the subsequent applications for costs were invalid and the orders passed thereon illegal cannot be accepted as correct.

Learned Counsel next contended that the order awarding costs was arbitrary and based on no evidence. It is true that there is no discussion as to how the learned Magistrate arrived at the amount of costs which was ordered, nevertheless it appears that the statement of expenditure was there before the magistrate and on a perusal of that statement, he awarded the costs. In one case, namely, Brij Pal Singh and Another Vs. Ram Naresh Singh and Others, it has been observed that in awarding costs to the successful party in the proceedings u/s 145, there need not be an exact calculation in the ordinary manner. The Court may award a reasonable lump sum. Apart from this, having regard to the small-ness of the amount involved, I do not want to interfere with the order of the learned Magistrate.

In the result, these applications are dismissed.