BAGAVANDAS MOOPANAR Vs. MUHAMMAD GANI ROWTHER

JUDGEMENT

(1.) The question that arises in this petition is whether the successor to the Magistrate who passed a decision under Secs.145 to 147 of the Criminal Procedure Code can pass an order as to costs under Section 148 (3) of the Code.

(2.) A plain reading of Section 148 (3) indicates that a successor to the Magistrate who passed an order under Secs.145 to 148 cannot pass an order as to costs. 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; and since that sub-section relates only to a direction as to by whom such costs shall be paid and whether in whole or in part, there can be no objection to a succeeding Magistrate assessing the costs regarding which an order has already been passed. So that decisions which deal with the questions whether a succeeding Magistrate can assess costs or whether an order as to costs can be made some time after a decision under Sections 145 to 147 has been passed do not help us.

(3.) There is a notable resemblance between the wording in Section 148 (3),Criminal Procedure Code, and that in Order 47, Rule 2, Civil Procedure Code, with regard to review applications. Against certain classes of orders review applications must he made to the Judge who passed the decree; and it is settled law that "Judge " here refers to the person and not to the office. I think a similar interpretation must be made of the word " Magistrate " in Section 148 (3); for if it was intended that any other Magistrate holding the same office might pass an order as to costs, the proper word to be used would be " Court" and not " Magistrate." Moreover, the words " the Magistrate passing a decision " would be unnecessary if it were intended that the succeeding Magistrate might pass such an order; for such powers in a succeeding Magistrate would then be presumed. Section 559, Criminal Procedure Code, empowers a successor in office to any Judge or Magistrate to exercise the powers and perform the duties of that Judge or Magistrate. The Legislature presumably used that language because it is desirable that the Magistrate who decides a case should also decide by whom costs should be paid and in what part or proportion.