Manglu Sahu And Others v. Ramdhani Tamboli Opposite Party.

1. The petitioners were second party in a proceeding under s. 145 of the Code of Criminal Procedure which was decided against them by 13 Babu Modeshwar Prasad Singh, Honorary Magistrate of Samastipur on the with October, 1927. On the 4th November, 1927, the opposite party filed an application before the Sub-Divisional Officer praying that costs may be awarded to them in connection with the proceeding under s. 115 and this application was referred to the trying Magistrate for disppsal. On the 13th July, 1928, the learned Sub Divisional Officer himself passed an order awarding a sum of Rs. 10J as costs to the opposite party.

2. The present application is directed against this order, and it is contended before me that the order cannot be supported in law, (1) because the Sub-Divisional Magistrate had no jurisdiction to pass an order under s. 148 when the case had been decided by another Magistrate; (2) because the learned Sub-Divisional Magistrate has awarded a sum of Rs. 100 without making any enquiry as to what the actual Pleader's fees and the costs of the witnesses were; and (3) because the judgment in the proceeding under s. 145 was delivered on the 13;h October, 1927, whereas the order under s. 118 was passed by the learned Sub-Divisional Magistrate about nine months later on the 13th July 1928.

3. The contentions raised by the petitioner are supported by authorities and must prevail.

4. In the case of Nafar Chandra Pal Chowdhury v. Sidhartha Krishna Mozumdar(1) it was held that the order under s. 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…Opposite Party.(2), it was clearly pointed out that under s. 148 of the Code of Criminal Procedure the Magistrate could award costs to the successful party; but it should be based on proper materials, namely, the actual costs incurred as Pleadei'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 learced Sub-Divisional Magistrate.

5. Rule made absolute.