KHEYALI SINGH Vs. NUNU LAL SINGH

JUDGEMENT

(1.) This application arises in the following circumstances: The opposite party instituted a suit in which he prayed for an injunction against defendant 1. An undertaking was given on behalf of the latter that the property which was, the subject-matter of the suit would not be alienated pending the suit and an affidavit supporting this undertaking was filed. The affidavit purported to be sworn by Jagarnath Singh, as karpardaz of defendant 1 Later, the plaintiff made an application under Section 476, Criminal P.C., for prosecution of the petitioner, defendant 1, and a clerk of the latter's pleader, alleging that Jagarnath had not in fact sworn the affidavit but that he had been impersonated by the petitioner in collusion with defendant 1 party and his pleader's clerk. The Court made a complaint against the petitioner, and defendant 1 only and awarded costs against them to the extent of 500. Against this order an appeal was preferred and resulted in the complaint against defendant X being, withdrawn and the costs reduced to Rs. 100. This Court was then moved and admitted the petition for consideration of the validity of the order for costs only.

(2.) The question is whether in a proceeding under the Criminal P. C. the Court has power to make an order for costs against either of the parties before it. In Abdul Hamid V/s. Ahmad Shah A.I.R. 1943 Lah. 26, it was held by a single Judge that a Court acting under Section 476 or Section 476-B is incompetent to award costs. In Emperor V/s. Bihari Lal , another single Judge held that the Court has power in a proceeding under Section 476, Criminal P.C., to award costs where the parties to the proceeding are the same as those in the civil litigation out of which the proceeding arose. In that case, however, an order for costs was set aside. In Bhagwandas Narandas V/s. D.D. Patel & Co. a single Judge held that an application under Section 476 being in the nature of a civil application, the Court has power to award costs. An examination of the provisions of the Code of Criminal Procedure shows that the only instances in which the Legislature has expressly empowered the award of costs in proceedings to which the Code applies, are proceedings under chaps. X and XII. Even in the case of a frivolous or vexatious complaints what the Court is empowered to award under Section 250 is compensation and not costs. Similarly, it is compensation and not costs which the Court is empowered to award under Section 526, in the case of a frivolous or vexatious application for transfer of a criminal case. It is difficult to believe that if the Legislature had intended the Court dealing with an application under Section 476 or Section 476B to award costs or compensation to either of the parties before it, no provision to that effect would have been made. The fact that in the instances to which I have referred the Legislature has expressly provided for award of costs or compensation in particular matters indicates that it was not considered desirable to do the same with regard to proceedings under Section 476 and cognate sections.

(3.) It was contended that when a proceeding under Section 476 arises out of a suit and the matter is dealt with by the Civil Court the proceeding is one to which the provisions of the Civil P. C. relating to costs applies. I am unable to accept that view. When a civil Court takes action under Section 476, it exercises powers conferred on it by the Criminal P. C. and its proceedings are governed by the provisions of that Code. The civil Court has no inherent power to initiate a prosecution in respect of offences to which Section 476, applies. It derives its jurisdiction to do so from the Criminal P. C. land its procedure must, therefore, be governed by the provisions of that Code. As that Code does not contemplate the award of costs in such cases, the Court has no power to make an order for costs. I would, therefore, set aside the order for costs passed by the Court below.