CHANDRAMA RAI Vs. HARBANS RAI

JUDGEMENT

(1.) This application has been filed in the first party in a proceeding under Section 145 of the Code of Criminal Procedure, complaining of an order dated the 28th February, 1961, passed by Sri S. K. Ghosh, Subdivisional Magistrate, Sadi Arrah, who had succeeded Sri S. K. Singh Subdivisional Magistrate Arrah, who had passed the final order in a proceeding under Section 145 of the Code on the 10th October, 1960. The proceeding between the parties, under Section 145 of the Code of Criminal Procedure terminated on the 10th October, 1960, when Sri Singh gave his decision, declaring the second party, "to be entitled to possession until evicted from the disputed land in due course of law. The first party, their heirs and successors-in-interest were forbidden to go over the disputed land until they are able to evict the members of the seeond party in due course of law. It appears from the records of the case that in passing the record (order?) dated 10-10-1960, the learned Magistrate had made no provision for payment of costs, envisaged by Section 148 Sub-section (3) of the Code. Thereafter, on the 30th November, 1960, the second party filed an application before Sri Singh under Section 148 of the Code, praying for the costs of the proceeding. Notices to the first party were issued by Sri Singh in the due course. Before final hearing of the matter, however, Sri S. K. Singh was transferred and Sri S. K. Ghosh succeeded him. It was contended by the first party before Sri Ghosh, that Sri Ghosh had no power under the Code of Criminal Procedure to pass any order regarding costs of the proceeding under Section 145, as he was not the Magistrate who had given the decision in the proceeding. The question mooted before Sri Ghosh was whether as the successor-in-office of Sri S.K. Singh, Sri Ghosh could pass an order contemplated by Section 148 Sub-section (3), when the decision in the main case had been given by Sri Singh. Upon hearing the parties. Sri Ghosh came to the conclusion that the reasonable view to be taken by him was that he had jurisdiction to pass order for costs as the successor-in-office of Sri Singh. The amount of costs was, however, not determined by Sri Ghosh by his order dated the 28th February, 1961, against which the first party have come up to this Court, and Sri Ghosh ordered that he would hear further arguments for the determination of the actual amount to be awarded as costs presumably in favour of the second party.

(2.) Sri Keshri Singh, appearing for the first party has relied upon Section 148 Sub-section (3) of the Code of Criminal Procedure and upon the case of Bagavandas Moopanar v. Muhammad Gani Rowther, AIR 1943 Mad 478, and upon the case of Sarju Prasad Sao v. Ramchandra Singh, AIR 1959 at 151 and has contended that Sri S.K. Ghosh had no jurisdiction to award costs in favour of the second party. Reference has also been made to Section 559 of the Code and it is urged that Sub-section (1) of that section cannot be brought in aid, because of the expression, "Subject to the other provisions of this Code" occurring therein. It is argued by Sri Keshri Singh that the expression, "subject to the other provisions of this Code", at once bring in the limitation imposed by the expression, "the Magistrate passing a decision under Section 145", mentioned in Sub-section (8) of Section 148, with the result that Sri S.K. Ghosh as the successor-in-office of Sri Singh could not have taken up the matter and pass an order for costs. Learned counsel for the opposite party has, on the other hand, contended that Section 148(8) of the Code read with Section 559 empowered Sri S.K. Ghosh to deal with the matter in question, as the successor-in-office of Sri S.K. Singh. It is argued that the expression, "the magistrate passing a decision under Section 145", appearing in Sub-section (3) of Section 148, cannot exclude the successor-in-office of the magistrate, upon the interpretation put on Section 559 Sub-section (1) by learned counsel for the petitioners. It is urged that Sri S.K. Singh had passed his order under Section 145 of the Code as a court and his successor-in-office was entitled to deal with the matter, if Sri S. K. Singh could have dealt with the question of costs, even after he had passed the final order in the proceeding. I will now proceed to consider the respective arguments of the learned counsel, based upon the interpretation of some of the sections of the Code of Criminal Procedure and upon the decisions submitted at the bar. It will be convenient, at this stage, to reproduce Sub-section (3) of Section 148 and Sub-section (1) of Section 559 of the Code of Criminal Procedure, which runs thus : 148(3) "When any costs have been incurred by any party to a proceeding under this Chapter, the Magistrate passing a decision under Section 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 pleaders' fees, which the court may consider reasonable". 559(1) "Subject to the other provisions of this Code, the powers and duties of a Judge or magistrate may be exercised or performed by his successor in office". The main case upon which Sri Keshri Singh has relied is the case of AIR 1943 Mad 478, which in Its turn, referred to three earlier decisions reported in Vythinada Tambiran v. Mayandi Chetti, ILR 29 Mad 378; Natar Chandra Pal v. Sidhartha Krishna, ILR 47 Cal 974: (AIR 1920 Cal 320) and Manglu Sahu v. Ramdhani Tamboli, AIR 1929 Pat 93. As indicated above, a later decision of this Court reported in AIR 1959 Pat 151 has also been relied upon, and I will proceed to consider the controversial question, taking Bagavandas's case as the starting point. A question similar to that which has arisen in the instant case had certainly arisen in Bagavandas's case, AIR 1943 Mad 478. The details of the facts of Bagavandas's case, AIR 1943 Mad 478 are not in the judgment, but the learned judge has commenced his judgment by stating;

(3.) The application filed by the first party challenging the order of Sri S. K. Ghosh, dated the 28th February, 1961, must, therefore, fail and it is dismissed.