BALESHWAR PRASAD SINGH Vs. NARAIN PRASAD MARWARI

JUDGEMENT

(1.) THE Additional Sessions Judge, 1st Court Monghyr, has made this reference for modifying the order dated the 14th of February, 1966 of Shri M. Hussain, Magistrate, assessing the amount of cost payable by the second party and third party to the first party in a proceeding under Section 145, Criminal Procedure Code, in pursuance of an order dated 19.9.1964, of Shri Rastogi, another Magistrate under Section 148 of the Code. The order in the proceeding under Section 145 of the Criminal Procedure Code was passed on 31.1.1963 and thereafter the first party filed an application for award of cost on the 6th of March, 1963. The total amount of costs awarded by the Magistrate was Rs. 4,771/ -. According to the Additional Sessions Judge the amount was unreasonable and the first party should have been allowed only Rs. 2,250/ - as costs.

(2.) MR . Shivanandan Roy appearing in support of the reference urged a ground not mentioned in the letter of reference that Shri Hussain could not pass any order as to costs. He relied in support of his contention on Section 148 sub.s. (3) of the Criminal Procedure Code, which says that only the Magistrate passing the decision under Sections 145, 146 or 147 of the Code may direct the payment of costs. There appears to be no substance in this contention inasmuch as that it was Shri Rastogi himself who had passed the order under Section 145 of the Code, directed for payment of cost and Shri Hussain merely ascertained the amount. In the case of Sarju Prasad Sao v. Ramachandra Singh reported in AIR 1959 Patna 151 it was held that under Section 148 (3) of the Code the direction for one party or the other to pay the cost and to pay it in whole or in part or in a certain proportion must be given by the Magistrate passing the decision under Section 145 or the other Sections of Chap. XII of the Code and there was nothing in this provision to show that even the actual assessment cannot be made by another Magistrate. It was further held in that case that the successor Magistrate can under Section 559 (1) do the actual work of assessment of cost in accordance with the direction of the Magistrate who passed the final order under Section 145 or other Sections of that Chapter. Shri Rastogi in his order dated 19.9.1964, said that the prayer of the petitioner that is the first party regarding the cost was reasonable and was allowed. Thereby he intended to order that the first party were entitled to all the costs they could prove to have incurred. If Shri Hussain has really reduced any amount claimed by the first party, the third party or second party cannot make any grievance of it. The order of Shri Hussain therefore assuming the amount of cost cannot be held to be illegal.

(3.) MR . Rajgarhia appearing for the first party attempted to show that the learned Additional Sessions Judge is not correct in observing that the costs assumed by Shri Hussain were unreasonable but he failed to do so. The learned Additional Sessions Judge appears to have taken a correct view of the matter and he has rightly observed that the amount of costs assumed by Shri Hussain was high and unreasonable and the amount should have been Rs. 2,250/ - only. I entirely agree with the reasons given by the learned Additional Sessions Judge in support of his view in his letter of reference. There can be no doubt that the claim of the 1st party was exaggerated.