KAMLA KANT JHA Vs. KANTIBRA RAI

JUDGEMENT

(1.) This application in revision is directed against the Order of the learned Magistrate, dated 26th June, 1973 by which he rejected the prayer of the petitioners for payment of costs incurred by them in a proceeding under section 145 of the Code of Criminal Procedure.

(2.) The facts necessary for disposing of the present application are that there was a proceeding under section 145 of the Code of Criminal Procedure in which the petitioners were the first party and the opposite party were arrayed as the second party. The proceeding was disposed of in favour of the petitioners. Shri A. D. Prasad, Magistrate, First Class, Madhubani, declared the possession of the first party over the land in dispute. The second party moved this Court in revision against the final order, but without any success. While the revision application was pending before this court, the petitioners filed an application on 28-9-1972 before Shri A. D. Prasad praying that the opposite party may be directed to pay costs of the proceeding. The matter remained undisposed of and Shri A. D. Prasad was transferred. The case was thereafter recalled by the Sub-Divisional Magistrate and transferred to the file of Shri S. N. Minz, Magistrate, First Class. Shri Minz heard the parties in regard to the application for costs and by order dated 25-6-1973, the prayer for payment of costs was rejected. The learned, Magistrate rejected the prayer for costs firstly on the ground that he had no jurisdiction to award costs as Shri A. D. Prasad himself had not passed any order for costs. The second ground for rejecting the prayer of the petitioners was that the application for costs was not accompanied by the statement in regard to the expenses incurred by the petitioners.

(3.) The first ground advanced by the learned Magistrate for rejecting the claim of the petitioners was entirely misconceived. The learned Magistrate was wrong in observing that he had no jurisdiction. It is well settled that the successor-Magistrate is as much entitled to award costs as the Magistrate who disposed of the proceeding under section 145 of the Code of Criminal Procedure. If the Magistrate who disposed of the main proceedings did not award costs, his successor would be entitled to do so, provided, of course, the earlier Magistrate who heard the proceeding had not rejected the prayer for costs. The case of Chandrama Rai and others v. Harbans Rai and others, AIR 1965 Patna 21, is n clear authority for the proposition that the successor Magistrate may award costs although the earlier Magistrate had not passed any order to that effect.