Patna High Court
Chandrama Rai And Ors. vs Harbans Rai And Ors. on 8 July, 1964
Equivalent citations: AIR1965PAT21, 1965CRILJ65, AIR 1965 PATNA 21, 1965 BLJR 198
JUDGMENT U.N. Sinha, J.
1. This application has been filed in the first party in a proceeding under Section 145 of the Code of Criminal Procedure, complaining of an order dated the 28th February, 1961, passed by Sri S. K. Ghosh, Subdivisional Magistrate, Sadi Arrah, who had succeeded Sri S. K. Singh Subdivisional Magistrate Arrah, who had passed the final order in a proceeding under Section 145 of the Code on the 10th October, 1960. The proceeding between the parties, under Section 145 of the Code of Criminal Procedure terminated on the 10th October, 1960, when Sri Singh gave his decision, declaring the second party, "to be entitled to possession until evicted from the disputed land in due course of law. The first party, their heirs and successors-in-interest were forbidden to go over the disputed land until they are able to evict the members of the seeond party in due course of law. It appears from the records of the case that in passing the record (order?) dated 10-10-1960, the learned Magistrate had made no provision for payment of costs, envisaged by Section 148 Sub-section (3) of the Code. Thereafter, on the 30th November, 1960, the second party filed an application before Sri Singh under Section 148 of the Code, praying for the costs of the proceeding. Notices to the first party were issued by Sri Singh in the due course. Before final hearing of the matter, however, Sri S. K. Singh was transferred and Sri S. K. Ghosh succeeded him.
It was contended by the first party before Sri Ghosh, that Sri Ghosh had no power under the Code of Criminal Procedure to pass any order regarding costs of the proceeding under Section 145, as he was not the Magistrate who had given the decision in the proceeding. The question mooted before Sri Ghosh was whether as the successor-in-office of Sri S.K. Singh, Sri Ghosh could pass an order contemplated by Section 148 Sub-section (3), when the decision in the main case had been given by Sri Singh. Upon hearing the parties. Sri Ghosh came to the conclusion that the reasonable view to be taken by him was that he had jurisdiction to pass order for costs as the successor-in-office of Sri Singh. The amount of costs was, however, not determined by Sri Ghosh by his order dated the 28th February, 1961, against which the first party have come up to this Court, and Sri Ghosh ordered that he would hear further arguments for the determination of the actual amount to be awarded as costs presumably in favour of the second party.
2. Sri Keshri Singh, appearing for the first party has relied upon Section 148 Sub-section (3) of the Code of Criminal Procedure and upon the case of Bagavandas Moopanar v. Muhammad Gani Rowther, AIR 1943 Mad 478, and upon the case of Sarju Prasad Sao v. Ramchandra Singh, AIR 1959 at 151 and has contended that Sri S.K. Ghosh had no jurisdiction to award costs in favour of the second party. Reference has also been made to Section 559 of the Code and it is urged that Sub-section (1) of that section cannot be brought in aid, because of the expression, "Subject to the other provisions of this Code" occurring therein. It is argued by Sri Keshri Singh that the expression, "subject to the other provisions of this Code", at once bring in the limitation imposed by the expression, "the Magistrate passing a decision under Section 145", mentioned in Sub-section (8) of Section 148, with the result that Sri S.K. Ghosh as the successor-in-office of Sri Singh could not have taken up the matter and pass an order for costs. Learned counsel for the opposite party has, on the other hand, contended that Section 148(8) of the Code read with Section 559 empowered Sri S.K. Ghosh to deal with the matter in question, as the successor-in-office of Sri S.K. Singh. It is argued that the expression, "the magistrate passing a decision under Section 145", appearing in Sub-section (3) of Section 148, cannot exclude the successor-in-office of the magistrate, upon the interpretation put on Section 559 Sub-section (1) by learned counsel for the petitioners. It is urged that Sri S.K. Singh had passed his order under Section 145 of the Code as a court and his successor-in-office was entitled to deal with the matter, if Sri S. K. Singh could have dealt with the question of costs, even after he had passed the final order in the proceeding. I will now proceed to consider the respective arguments of the learned counsel, based upon the interpretation of some of the sections of the Code of Criminal Procedure and upon the decisions submitted at the bar. It will be convenient, at this stage, to reproduce Sub-section (3) of Section 148 and Sub-section (1) of Section 559 of the Code of Criminal Procedure, which runs thus :
148(3) "When any costs have been incurred by any party to a proceeding under this Chapter, the Magistrate passing a decision under Section 145, Section 146 or Section 147 may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion. Such costs may include any expenses incurred in respect of witnesses, and of pleaders' fees, which the court may consider reasonable".
559(1) "Subject to the other provisions of this Code, the powers and duties of a Judge or magistrate may be exercised or performed by his successor in office".
The main case upon which Sri Keshri Singh has relied is the case of AIR 1943 Mad 478, which in Its turn, referred to three earlier decisions reported in Vythinada Tambiran v. Mayandi Chetti, ILR 29 Mad 378; Natar Chandra Pal v. Sidhartha Krishna, ILR 47 Cal 974: (AIR 1920 Cal 320) and Manglu Sahu v. Ramdhani Tamboli, AIR 1929 Pat 93. As indicated above, a later decision of this Court reported in AIR 1959 Pat 151 has also been relied upon, and I will proceed to consider the controversial question, taking Bagavandas's case as the starting point. A question similar to that which has arisen in the instant case had certainly arisen in Bagavandas's case, AIR 1943 Mad 478. The details of the facts of Bagavandas's case, AIR 1943 Mad 478 are not in the judgment, but the learned judge has commenced his judgment by stating;
"The question that arises in this petition is whether the successor to the magistrate who passed a decision under Sections 145 to 147, Criminal P. C. can pass an order as to costs under Section 148(3) of the Code".
According to Horwill, J., the successor Magistrate in Bagavandas's case had no jurisdiction to make an order for costs, as he was not the magistrate who had passed the decision under Section 145. In arriving at this decision the learned Judge made a reference to certain remarks of Subrahmanla Ayyar J. In ILR 29 Mad 373, and then held that the point under decision was directly covered by Nafar Chandra Pal's case, ILR 47 Cal 974: (AIR 1920 Cal 320) and Manglu Sahu's case, AIR 1929 Pat 93. It will appear presently, when I deal with Nafar Chandra Pal's case and Manglu Sahu's case, that the point under consideration was not really in controversy in those cases, nor was it directly decided, as stated by Horwill, J. With great respect, it appears to me that the observation of Subrahmania Ayyar, J., quoted from ILR 29 Mad 373, goes to the root of the matter, and that observation really supplies the clue to the correct interpretation of Section 148(3) of the Code of Criminal Procedure. Chronologically speaking, Nafar Chandra Pal's case, ILR 47 Cal 974: (AIR 1920 Cal 320) comes before Manglu Sahu's case, AIR 1929 Pat 93 and the facts of Nafar Chandra, Pal's case, ILR 47 Cal 974: (AIR 1920 Cal 320) were as follows: There was a proceeding under Section 145 of the Code of Criminal Procedure, and it was decided on the 2nd June, 1919, by an Honorary Magistrate exercising first class powers. The order made by the magistrate was in favour of the first party; but in the order in question the magistrate gave no direction at all regarding costs. About two months thereafter, the first party applied to the magistrate for an order that the second party should pay the costs of the proceedings to the first party. The same Magistrate passed a subsequent order on the 11th December, 1919, upon this matter, ordering the second party to pay a certain amount of money as costs to the first party. It was contended before the High Court that the Honorary magistrate had no jurisdiction to make any order as to costs, inasmuch as it was not made by him at the time he gave his decision on the merits of the case on the 2nd June, 1919. Upon an interpretation of Section 148 Sub-section (3) of the Code, it was held that the Honorary Magistrate in that case had jurisdiction to pass the order complained of. Sri Keshri Singh has relied upon the following observations in Nafar Chandra Pal's case, TLR 47 Cal 974: (AIR 1920 Cal 320) namely:
"In my judgment, that section does not provide that a magistrate who gives a decision under Section 145, if he desires to make an order as to costs, must make the order at the time he gives his decision on the merits. In my judgment, as long as an order for costs is made by the same Magistrate who passes the decision under Section 145, Section 146, or Section 147, he has jurisdiction to make the order".
In my opinion, however, the question that has directly arisen in the instant case had not fallen for a direct decision in Nafar Chandra Pal's case, ILR 47 Cal 974: (AIR 1920 Cal 320). This is obvious from the facts of the case, stated above. The quotation upon which Sri Singh has relied, and presumably which was so interpreted in Bagavandas's case, AIR 1943 Mad 478, does not deal with the question that has arisen in this case, in view of Section 559(1) of the Code of Criminal Procedure. No reference was made to Section 559 in Nafar Ghandra Pal's case as no occasion had arisen for such a reference.
The observation of the Calcutta High Court, quoted above, cannot, in my opinion, be interpreted as laying down a proposition that a successor in office within the meaning of Section 559(1) of the Code has no jurisdiction to deal with the matter of costs governed by Section 148(3) of the Code. The decision of this court in Manglu Sahu's case, AIR 1929 Pat 93 may now be quoted. In that case an Honorary magistrate had passed an order under Section 145 of the Code of Criminal Procedure on the 13th October, 1927, The decision was against the second party. On the 4th November the first party filed an application before the Subdivisional officer, praying that costs may be awarded to them in connection with that proceeding. This application was referred to the trying Magistrate for disposal. On the 13th "July, 1928, it appears, that the Subdivisional Magistrate himself passed an order awarding a sum of Rs. 100 as costs to the petitioners. The order of the Subdivisional Magistrate came up to this court for consideration. The learned Judge of this Court set aside the order of the Subdivisional Magistrate, stating thus:
"In the case of 32" Cal LJ 34: (AIR 1920 Cal 320) it was held that the order under Section 148, although it may be made subsequent to the passing of the judgment, must be made by the Magistrate, who tried the original case. In the same case it was pointed out that an application for costs which is not made at the time the judgment is delivered ought to be made within a reasonable time. In the case of Jhaman Mahton v. Thakuri Mahton, 57 Ind Cas 449: (AIR 1920 Pat 219) it was clearly pointed out that under Section 148, Criminal P. C. the Magistrate could award costs to the successful party; but it should be based on proper materials, namely the actual costs incurred as pleader's fees and costs of witnesses. In view of these authorities I must make the rule absolute and set aside the order passed by the learned Subdivisional magistrate"
It appears to me, again, that the question that has arisen for decision in the present case was really not directly in controversy in Manglu Sahu's case. The decision of the case under Section 145 had been given by the Honorary Magistrate, to whom the subsequent application for costs had been referred. The order for costs was, however, passed by the Subdivisional Magistrate himself. Apparently Manglu Sahu's case did not involve any interpretation of Section 559 of the Code, as no reference was made to it. On the facts of Manglu Sahu's case, AIR 1929 Pat 93 there is no doubt whatsoever that the decision was right on its facts. The Subdivisional Magistrate had not purported to act as the successor in office of the Honorary Magistrate, and hence Manglu Sahu's case, AIR 1929 Pat 93 cannot be a direct decision on the point that has now arisen. With great respect, I am not inclined to agree with the learned Judge, who had decided Bagavan-das's case. Although the facts in Vythinada Tambiran's case, ILR 29 Mad 373 did not bring in the question of the jurisdiction of the successor in office, the interpretation of Section 148(3) was given by the learned Judge thus:
"The word 'passing' which follows the term "Magistrate" in the said provision, as I understand it, means no more than that the Magistrate who may award costs, is the officer holding the proceeding under the chapter or his successor entitled to discharge his functions in connection with the matter" No doubt this observation or Subrahmania Ayyar, J. was not the ratio decidendi of the case, but it appears to me that when the learned Judge brings in also the question of jurisdiction of the successor in office of the Magistrate who had passed the original order, he puts a correct interpretation upon Section 148 (3) read with Section 559 (1) of the Code, if no other section of the Code debars the successor in office from exercising his jurisdiction in dealing with a proceeding which had been decided by his predecessor in office.
In my opinion, the contention of Sri Keshri Singh that the expression, "Subject to the other provisions of this Code" in Section 559(1) excludes the successor in office in a case under Section 145 of the Code, because the meaning of Section 148(3) is that only "the magistrate passing a decision under Section 145" can deal with the question of costs, is not correct it appears to me that when a particular Magistrate had passed a decision under Section 145 of the Code, his successor in office; can deal with the matter of costs, if no other provision in the Code of Criminal Procedure stands in his way, and if no other provision of law stands in his way, only the expression, "Subject to the other provisions of this Code" in Section 559 (1) cannot be interpreted to debar the successor in office from dealing with the matter. In this context, reference may be made to a decision of the Calcutta High Court in the case of Bholanath Dhar v. Gour Gopal, AIR 1953 Cal 777 dealing with the interpretation of Section 559(1) read with Section 192 of the Code of Criminal Procedure. Section 192 Sub-section (1) of the Code runs thus:
"192(1) Any Chief Presidency Magistrate. District Magistrate or sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him"
It has been contended in Bholanath's case, AIR 1953 Cal 777 that Sri S. L. Banerji, Magistrate 1st class, had no jurisdiction to try the case decided by him under Section 145 as the case had not been validly transferred to him. It appears that the Subdivisional Magistrate had taken cognizance of this case, and it was urged that he alone was competent to transfer the case to another Magistrate for disposal, and it was argued that the transfer made to Sri S.L. Banerji by Sri A. B. Mukherji was invalid, Sri A. B. Mukherji on the relevant date was the subdivisional Magistrate, having taken over from the Subdivisional Magistrate, who had taken cognizance of the case. It was argued in the Calcutta High Court, that upon an interpretation of Section 559(1) of the Code, it did not authorise Sri Mukherji to transfer the case of which cognizance had been taken by his predecessor. Reliance was placed on the expression occurring in Section 192(1) that the sub-divisional Magistrate may transfer any case of which he has taken cognizance. This argument was repelled by the Calcutta High Court upon an interpretation of Section 559(1). It was stated that the interpretation that a successor subdivisional magistrate cannot deal with a matter under Section 192 of which he had not taken cognizance, would make Section 559(1) altogether infructuous. It was held in Bholanath's case, AIR 1953 Cal 777 that the successor Subdivisional Magistrate could by virtue of Section 559(1) transfer to a magistrate subordinate to him of a case of which cognizancc was taken by his predecessor.
It appears to me that the same principle should be followed in the instant case and the contention of Sri Keshri Singh based on the opening words of Section 559(1) repelled. In this context, their Lordships of the Calcutta High Court in Bholanath's case stated thus:
"On behalf of the petitioners it has been urged, that this interpretation ignores the words 'subject to the other provisions of this Code'. The reply is that the words are by no means ignored; a successor-in-office is bound by the other provisions of the Code. For instance, where a Second Class Magistrate succeeds a First Class Magistrate as the S. D. O. he cannot try eases triable by a First Class Magistrate by claiming to exercise the powers of his predecessor in office, and a successor is further subject in the matter of trial of a part heard case to the provisions of Section 350. Thus the interpretation made above does not ignore any of the words of Section 559 (1)"
A review of the authorities dealt with above and the interpretations mentioned, make it clear, in my opinion, that in the instant case, Sri S. K. Ghosh had the jurisdiction to deal with the matter decided by him by the impugned order. It falls for consideration, now, whether, the conclusions arrived at by me are in any way contrary to the Bench decision of this Court in the case of AIR 1959 Pat 151. It will appear presently from the facts stated below that the point for consideration in the present case did not fall for consideration in Sarju Prasad's ease. There was, in that case, a proceeding under Section 145 of the Code of Criminal Procedure, which was finally disposed of by Mr. R. N. Sinha. a Magistrate of the First Class, on the 23rd November, 1953. The Magistrate declared the disputed land to be in possession of the second party. Thereafter, Sri Sinha was transferred and the successful party applied under Section 559 of the Code before the District Magistrate, praying that a successor to Sri Sinha may be appointed. On the same day the District Magistrate appointed the Subdivisional officer of Arrah Sadr as the successor in office of Sri Sinha. The successful party then applied before the Subdivisional Magistrate for assessment of the costs. The Subdivisional Magistrate assessed the costs in favour of the successful party at Rs. 1,596/-. This order of the Subdivisional Magistrate was complained of before this Court it was urged before this Court that the Magistrate who passes an order under Section 145 must himself pass the order under Sub-section (3) of Section 148 for payment of costs by one party to the other and that he must also assess the amount of costs, hi Sarju Prasad's case, Sri R. N. Sinha had said in his order, "First party to bear the pleader's costs incurred by the second party".
It was held by this Court that as Sri Sinha had given necessary direction as required, there was no legal objection to the Subdivisional Magistrate subsequently assessing the actual amount of costs, being the successor in office of Sri Sinha. Sri Keshri Singh has relied upon the following observations of this Court for his contention that the question in controversy in the instant case had been dealt with in Sarju Prasad's ease, AIR 1959 Pat 151. After quoting Sub-section (3) of Section 148, this Court stated thus:
"A perusal of this sub-section makes it perfectly clear that the direction for one party or the other to pay costs and to pay it in whole or in part or in a certain proportion must be given 'by the Magistrate passing a decision under Section 145' or the other sections of Chap. 12. There is nothing in this provision to show that even the actual assessment cannot be made by another Magistrate. Subsection (1) of Section 559 reads:
"Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office."
It seems to be manifest that a successor Magistrate can, under Section 559(1), do the actual work of assessment of costs in accordance with the direction of the Magistrate who passed the final order under Section 145, 146 or 147. I am unable to find any legal objection to this course being adopted". It appears to me that the question in controversy in this case had not really fallen for decision in Sarju Prasad's case, AIR 1959 Pat 151. The observation of this Court merely quoted the expression "by the Magistrate passing a decision under Section 145", occurring in Sub-section (3) of Section 148, without deciding that the successor in office had no jurisdiction to deal with the question of costs, if the Magistrate, who had given his decision in the original case, had not dealt with the question of costs at all. As a matter of fact, in Sarju Prasad's case, AIR 1959 Pat 151, Sri Sinha had dealt with the question of costs, as mentioned above, and the only question that arose in Sarju Prasad's case was, whether the successor in office could thereafter make the actual assessment. The answer was given in the affirmative. It does not appear to me that the interpretation that has been put by me upon Section 148(3) read with Section 559(1) of the Code of Criminal Procedure is in any way in conflict with the decision in Sarju Prasad's case, AIR 1959 Pat 151. In my opinion, the interpretation of Section 148 (3) read with Section 559(1) should be that even if the magistrate who had passed a decision under Section 145 had not dealt with the question of costs in any manner, his successor-in-office can deal with the question, if no other provision of the Code of Criminal Procedure stands in his way. The contention of Sri Keshri Singh that the words, "the Magistrate passing a decision under Section 145," must mean that the officer, who had, in fact, passed a decision under Section 145, was the only officer who could deal with the question of costs, is without any force. The Magistrate who passes a decision under Section 145, does so as a court and not as a particular Magistrate, separated from his function as a Court. The definition of Criminal courts given in Section 6 of the Code of Criminal Procedure shows that the Magistrates mentioned therein comprise the Criminal courts. The last sentence in Sub-section (3) of Section 148 may also be noted, which runs thus:
"Such costs may include any expenses incurred in respect of witnesses, and of pleaders' fees, which the Court may consider reasonable".
Therefore, it is clear that the expression "the Magistrate passing a decision under Section 145", must be equated with the word "Court" mentioned in the last sentence of Section 148(3). It appears to me, from a consideration of Section 148 in all its aspects, that the expression "the magistrate passing a decision under Section 145" in Sub-section (3) had to be used with respect to the order for costs, because of the various Magistrates mentioned in Sub-section (1) of that section. Sub-section (1) envisages a local enquiry, if necessary, which can be directed by a District Magistrate or a subdivisional Magistrate to be held by a Magistrate subordinate to either of them. The Magistrate ordering that enquiry has the power to declare by whom the whole or any part of the necessary expenses of the enquiry were to be paid. If such an enquiry is held and costs are incurred and such costs arc paid in terms of any order under Sub-section (1), then the function of the Magistrate passing a decision in the original case arises at the final stage with respect to the expenses incurred. Necessarily, it had to be incorporated in Sub-section (3) that the ultimate order for costs falls within the jurisdiction of the Magistrate who passes the decision in the case under Section 145 (for the moment, I am ignoring Sections 146 and 147, mentioned in the sub-section.) It is difficult to hold that the interpretation of Sub-section (3) of Section 148 should be that only the Magistrate who had passed his decision under Section 145 could pass an order for costs, and his successor in office cannot, if nothing else stands in the way. It appears to me, in the result, that the order passed by Sri S. K. Ghosh is correct.
3. The application filed by the first party challenging the order of Sri S. K. Ghosh, dated the 28th February, 1961, must, therefore, fail and it is dismissed.
R.J. Bahadur, J.
4. I agree.