1. This is a reference made by the learned Sessions Judge of Ghazipur, recommending this Court to set aside the order of a Magistrate passed under Section 145 of the Cr PC. The Judge himself has found no defect in the Magistrate's order, except that in his opinion the Magistrate was uncertain as to which party should be placed in possession and therefore should have acted under Section 146 of the Cr PC, and taken the land under attachment and secondly he objects to the Magistrate's order awarding a sum of Rs. 50 as costs to one of the parties.
2. The Magistrate was asked for an explanation. On the first point he says:
“I was in no doubt about the possession of the person in whose favour the order under Section 145 of the Cr PC, was passed.”
3. In my own opinion it is quite clear from the Magistrate's original order that he at least had made up his mind as to who was in possession and that being so Section 146 of the Cr PC has no application. That section merely comes into operation if the Magistrate is unable to satisfy himself as to which of the parties is in possession.
4. The section does not say that the Magistrate has got to write an order so convincing as to make a revisional Court equally sure that one party is in possession rather than the other. I cannot find therefore that there is any defect in the Magistrate's procedure in so far as he placed one party in possession under Section 145 of the Cr PC. As far as I am aware there is only one reported judgment of any High Court on the question of costs. It is a judgment of the Calcutta High Court reported in Prayag Mahaton v. Gobind Mahaton(1) and is of the year 1905. In that case the Magistrate ordered one party to pay the other a sum of Rs. 50 as costa for the damage of crops, as well as costs in the case. The learned Judges of the Calcutta High Court, held that this order was without jurisdiction because the Magistrate awarded one party so much for damages to his crops. It does not appear that there was any objection taken by the Court to an order awarding a lump sum for costs incurred on witnesses or pleaders' fees or both. The Code has been amended since then by the Criminal Procedure Code Amendment Act of 1923 and the last clause of S. 148 now runs:
“Such costs may include any expenses incurred in respect of witnesses and of pleader's fees which the Court may consider reasonable.”
5. It is not suggested that the sum awarded is unreasonable but merely that it should have been an exact sum proved in the ordinary manner. But it is extremely difficult to prove the exact sum spent in costs in a semi-criminal case such as one under Section 145 of the Cr PC. In such cases I consider that the Court may very well use its discretion in awarding an amount which it considers reasonable. I see no reason to interfere with the Magistrate's order and I direct that the record be returned.
W.D/R.K
6. Reference rejected.