NATHUNI SINGH Vs. SUNDER SINGH

JUDGEMENT

(1.) This is an application in revision by the petitioner, who was a second party in a proceeding under Sec. 145 Criminal Procedure Code, against an order passed on 17.3.1971 by a Magistrate, 1st Class, Patna, directing the petitioner to pay cost of Rs. 492/ - to the opposite party, who was a successful party in a proceeding under Sec. 145 Criminal Procedure Code aforesaid. It appears that the proceeding under Sec. 145 Criminal Procedure Code between the petitioner as second party and the opposite party as first party was decided in favour of the opposite party and final order was passed on 18.5.1970 by Sri K.P. Srivastava, Magistrate, 1st Class, Patna. Subsequently, the opposite party, who was a successful party in the proceeding under Sec. 145 Criminal Procedure Code filed an application under Sec. 148(3) Criminal Procedure Code before Sri P.D. Prasad for grant of cost of the proceeding claiming in all Rs. 492/ - as cost. Sri Prasad by his impugned order dated 17.8.1971 allowed the cost claimed by the opposite party against the petitioner. Thereupon, the petitioner filed an application before the learned Magistrate to recall the order. He, however, by his order 6 10.1971 rejected the application. The petitioner again filed a petition before the learned Magistrate to reconsider the order passed on 6.1.1971 and the learned Magistrate by his order dated 19 10.1971 rejected the petition. Thereafter, the petitioner filed an application before the Sessions Judge, Patna, for making a reference to this Court. The Sessions Judge by his order dated 12.4.1973 dismissed the petition as, according to him, it was not a fit case for making a reference to this Court. Thereafter, the petitioner filed an application in this Court originally under Sec. 561A of the Code of Criminal Procedure, but subsequently it appears he deleted 561A and converted into a revision application under Sec. 435 and 439 of the Code, but also inserted 561A of the Code. I have stated this fact only to show as to how this matter was being pursued in this Court as well as in the courts below.

(2.) The learned lawyer for the petitioner has submitted that since the final order, in the proceeding under Sec. 145 Criminal Procedure Code, was passed by Sri K.P. Srivastava, Magistrate, 1st Class, Patna, he alone was competent to allow cost under the provision of Sec. 148(3) Cr. Procedure Code and no other Magistrate. However, in course of argument it was contended that a Magistrate, who was successor in office of Sri Srivastava could assess the amount of cost, if an order of cost was passed by Sri Srivastava, who had decided the proceeding and passed final order but the successor in office could not pass any order for cost when no order was passed by the Magistrate who decided the proceeding.

(3.) The learned lawyer appearing on behalf of the opposite party has submitted that the application of the petitioner is barred by limitation and is also misconceived, as the Magistrate who was successor in office of the Magistrate who passed the final order, could pass the order for cost and that is what has been done in this case The order for cost has been passed, though not by the Magistrate who had passed the final order, but by the Magistrate who was the successor in office of that Magistrate. The learned lawyer for the petitioner after looking into the record of the case conceded that Mr. P.D. Prasad was successor in office of Sri Srivastava. The learned lawyer for the opposite party has relied on a decision of this Court in the case of (1) Sakhichand Sahu and another V. Ishwar Dayal Sahu and others ( : A.I.R. 1967 Pat 351), in which it has been held that where the Sessions Judge declines to make a reference under Sec. 438 Criminal P.C. in respect of an order passed by the Magistrate under Sec. 145 of the Code and the aggrieved party files a revision before the High Court, the order sought to be revised, as contemplated by Art. 131 of the new Limitation Act, is the order of the Magistrate and not the order of the Sessions Judge refusing to make a reference and, therefore, the application in revision must be filed before the High Court within ninety days from the date of the Magistrate's order, excluding, of course, the time taken in obtaining relevant copies. In view of the decision, referred to above, there is no escape from the position that this application of the petitioner is barred by limitation, as the impugned order against which he preferred this application was passed by the learned Magistrate on 17 -3 -1971 and the application in revision was filed here on 2 -7 -1973. Besides that, even on merit it has been submitted that the petitioner has no case, in view of the decision in the case of (2) Chandrama Rai and others Versus Harbans Rai and others (1965 B.I.J.B. 198). In the case, referred to above, Justice U.N. Sinha, as he then was, in the concluding portion of the judgment has observed as follows : -