P. Veerappa Naidu Petitioner (Petitioner). v. Avudayammal And Others S (S).

The question has been raised, in connection with this petition, whether the High Court can grant costs, to the successful party and to the Public Prosecutor, in a matter coming up before it in revision, from an order passed by a Magistrate, in proceedings, under Chapter XII of the Criminal Procedure Code. It must be conceded that there is no specific provision in the Code, which allows the High Court to grant such costs; and I am referred to the Full Bench ruling in A.T. Sankaralinga Mudaliar v. Narayana Mudaliar(1), for the proposition that the High Court has no jurisdiction, to grant costs in criminal cases, except in those cases, where the Code of Criminal Procedure makes express provision. In that ruling, however, it was pointed out that Sect. 148, one of the sections under Chapter XII of the Code, does provide for the award of costs; so that the granting of costs in proceedings under chapter XII was not under consideration, by the Full Bench in that case. Sect. 148 lays down that, when passing his decision in the case, a Magistrate may direct costs to be paid. Mr. Ethiraj, in an ingenious argument, contended that the awarding of costs in such proceedings is an incidental order, within the meaning of Sect. 423 (d), and that the High Court has the power of exercising it, by force of Sect. 439, which empowers a High Court, in revision, to exercise any of the powers conferred on it by Sect. 423. I am clear that the High Court, in revision, could pass any order, which the Magistrate himself could have passed: that is the High Court could, in revision, direct the costs before the Magistrate himself, to be paid by one party to another. But that is not the same thing, as the High Court directing costs before it, in revision, to be paid by one party to another. As the learned Chief Justice, has said in A.T. Sankaralinga Mudaliar v. Narayana Mudaliar,

“The whole machinery of revision is the creature of statute and has to be found, within the four walls of the Criminal Procedure Code.”

It is obvious that Chapter XXXII of the Criminal Procedure Code does not specifically provide for costs, incurred in the High Court, by parties in Revision Petitions. I hesitate to hold that any exception was intended to be made in a case, where the first Court was itself empowered to award costs, and that the power conferred on the first Court was intended to extend to the High Court also, and form thus an exception to the general rule, that no costs are awardable in Criminal Revision Petitions.

I may refer to certain case of this Court, in which costs in the High Court have been awarded in Criminal Revision Cases, relating to orders under Chapter XII of the Criminal Procedure Code, one of which is a Judgment of my own. These are Criminal Revision Cases Nos. 519 of 1916, 51 of 1922, 352 of 1922 and L.P.A, No. 2 of 1915. The two cases of 1922 are later than the Full Bench decision. In none of these cases, has authority been quoted for the award of costs.

Mr. Ethiraj has argued further that the term “Magistrate” in sect. 148 will include the High Court and quotes, the Privy Council ruling in Clarke v. Brajendra Kishore Roy Chowdhury(2), an obiter dictum, stating that, in the Criminal procedure Code, the terms “Magistrate” and “Court” are convertible. The question there, however was only whether the Magistrate in doing a certain act was acting as a Court or not. To hold that wherever the term “Magistrate” is used, the term “High Court” can be substituted is obviously an untenable proposition, which would inter alia extend the original criminal jurisdiction of the High Court, throughout the whole Presidency. Where the Code means the High Court, it uses the term “the High Court.”

It appears to me, as at present advised, that the High Court has no power to award costs incurred before it, on the hearing of a Criminal Revision Petition, against an order passed under Chapter XII of the Criminal Procedure Code; but, as the practice of the Court is not uniform and the point, as a question of jurisdiction, has not been considered, I direct that the case be laid before the Chief Justice for reference to a Full Bench.

The Criminal Revision Case No. 66 of 1924, having been set down to be spoken to on Tusesday, the 30th day of September 1924, as regards costs, the Court (Wallace, J.) ordered that the case be posted with Criminal Revision Case No. 937 of 1923, when it comes up before the Full Bench.

These cases came on for hearing before a Full Bench constituted as above.

Messrs. K. Balasubramania Aiyar and S. Rangachariar for the Petitioners.

Messrs. V. L. Ethiraj, A. Srirangachari, and A. Ramakrishna Aiyar, for Mr. L. S. Veeraraghava Aiyar for the Respondents.

Mr. R. N. Aingar for The Public Prosecutor (Mr. J. C. Adam) for the Crown.

OPINION

We are agreed in thinking that the question whether the High Court, when exercising its powers of Criminal Revision, has inherent power to award costs to the successful party, has been settled by the decision of the Full Bench in A.T. Sankaralinga Mudaliar v. Narayana Mudaliar. Meanwhile, the amendment of the Criminal Procedure Code has not made any difference, since the Legislature has not acted upon the suggestion thrown out by Coutts Trotter, J., who sat upon the above-mentioned Full Bench, that in order to check the activities of private prosecutors, in revision proceedings, the Court should be invested with power, in proper cases, to award costs. It is true that Sect. 561-A of the Code of Criminal Procedure, which deals with the inherent power of the High Court is new. But as observed by the learned Chief Justice in A.T. Sankaralinga Mudaliar v. Narayana Mudaliar, the Court cannot be invoking its inherent powers to extend the powers given to it by Statute. Nor can the award of costs be treated as incidental to or consequential upon the disposal of the revision petition, within the meaning of Sect. 423 (1) (d); for, it does not necessarily follow from an order passed in revision (compare Mehi Singh v. Mangal Khandu.

Magistrates have power, under Sect. 148 to dirct by whom any costs, incurred by parties in proceedings before them, under Chapter XII, are to be paid; but the costs, referred to in the Section, are evidently the costs incurred in the magisterial proceedings. When the High Court sits in revision, it is not exercising the powers of a Magistrate, under this Chapter and therefore the costs in the revision proceedings cannot be included under this head.

We consider that Wallace, J., who made this reference, was right in holding that he had no power to make an order for costs, in the two petitions, which were before him and they will therefore be returned to him, with our opinion for passing the necessary orders.

K. V. S.Reference answered that costs cannot be included in Revision Proceedings..