The Judgment of the Court was as follows:—
Sanderson, C.J:— This was a Rule granted by my learned brothers Mr. Justice Chaudhuri and Mr. Justice Newbould calling upon the District Magistrate and the Opposite Party to show cause why the order complained of should not be set aside. The order complained of was dated the 11th of December 1919, and was made by Mr. Indu Bhusan Mullick, Honorary Magistrate, 1st class, of Meherpur, and the order was that the second party in certain prcceedngs under sec. 115, Criminal Procedure Code, should pay Rs. 834 as the costs of the case under sec. 145, Cr. P.C, to the first party. It appears that the original case under sec. 145, Cr. P.C, between the fist and the second parties was tried by the same Magistrate, and the order which the Magistrate made was in favour of the first party and was dated the 2nd of June 1919. In the judgment which the Magistrate gave on the 2nd of June 1919, he made no order with regard to the question of costs. He gave no direction and his judgment did not deal with that question in any way at all. On the 13th of August, about two months and 28 days after the date of the judgment in the original case, 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, and the Honorary Magistrate after hearing arguments and after referring to certain decisions made the order to which I have referred. It is now argued, that the Honorary Magistrate had no jurisdiction to make the 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 of June 1919.
This matter depends, in my judgment, upon the words of sec. 148, sub-sec. (3) of the Code of Criminal Procedure. That sub-section runs as follows: “When any costs have, been incurred by any party to a proceeding under this chapter for witnesses, or pleaders' fees, or both, the Magistrate passing a decision under sec. 145, sec. 146 or sec. 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. All costs so directed to be paid may be recovered as if they were fines.” In my judgment that section does not provide that a Magistrate who gives a decision under sec. 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 sec. 145, sec. 146 or sec. 147, he has jurisdiction to make the order.
The learned Vakil relied upon sec. 369 of the same Code which runs “as follows: “No Court, other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in secs. 395 and 484 or to correct a clerical error.” In this case where the judgment, which was delivered on the 2nd of June 1919, did not deal with the question of costs at all, it cannot be said that the subsequent order of the Honorary Magistrate of the 11th of December upon this question of costs was an alteration or a review of the judgment of the 2nd of June within the meaning of sec. 369. So much for the question of jurisdiction.
The Honorary Magistrate seems to think that the delay in this case, which was nearly three months, was not unreasonable, having regard to the facts which he sets out in his judgment, one of them being that the first party waited to see the result of the High Court appeal which was presented by the second party. I must not be taken as agreeing to that. I do not understand why it was necessary for the first party to postpone the application for costs until after the decision of the High Court appeal. I do not propose to interfere with the Honorary Magistrate's order which he has made in his discretion, but I wish to make it clear that in my judgment an application for costs, if it is not made at the time the judgment is delivered, ought to be made within a reasonable time. What is a reasonable time must depend upon the circumstances of each case. Ordinarily an application for costs ought not to be made after so long an interval as two months and twenty-eight days, as in the case. As I have already said I am not prepared to overrule the Honorary Magistrate upon a question of discretion. But if I had been sitting in the Court of first instance and this application had been made before me I should have had great hesitation before granting the application, having regard to the delay which had occurred since judgment was given on the merits.
For the reasons which I have already stated, in my judgment this Rule should be discharged.
Walmsley, J.:— I agree.
S.C.M
Rule discharged.