Khobhari Rai v. Ram Lakhan Rai — 1976 DIGILAW 119 (PAT)

Judgment NAGENDRA PRASAD SINGH, J. 1. In this criminal revision originally Khobhari Rai was the petitioner, who was the first party to a proceeding under Sec.145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code). The said proceeding was decided in favour of the members of the opposite party who were declared to be in actual physical possession of the lands in dispute, by order, dated the 23rd August, 1968, passed by Shree R.N. Maharaj, Magistrate, First Class, Barh. 2. It appears that, on the 24th October, 1968, the members of the opposite party filed an application before Shree R.N. Maharaj for an order for costs in respect of the proceeding in question in accordance with the provisions of Sec.148(3) of the Code. The said Shree R.N. Maharaj passed an order on the 19th May, 1969, saying "In this case the petitioner has been found in possession of the disputed land. As such, he was naturally entitled for the claim of the legal and reasonable cost." The case was, however, transferred to Shree B.N. Sinha, Magistrate, First Class, who was successor-in -office of Shri R.N. Maharaj. The said Shri B.N. Sinha, on the 14th November, 1970, after hearing the parties, passed an order directing the aforesaid Khobhari Rai to pay a sum of Rs. 970.00 as costs to the members of the opposite party. The revision application was filed by the said Khobhari Rai. But, during the pendency of the application in this Court, Khobhari Rai died and his heirs have been substituted who are now the petitioners in this Court. 3. The petitioners have challenged the legality of the said order. It has been submitted on behalf of the petitioners that, there being no order for costs in the order declaring the members of the opposite party to be in possession of the lands in dispute, the learned Magistrate could not have entertained the application filed later. In that connection it has also been submitted that no party to such a proceeding is entitled to costs as a matter of right, and it is in the discretion of the Court concerned which discretion should be exercised on well known judicial principles. 4. In that connection it has also been submitted that no party to such a proceeding is entitled to costs as a matter of right, and it is in the discretion of the Court concerned which discretion should be exercised on well known judicial principles. 4. The question as to whether a Magistrate who decided the proceeding or his successor-in-office could entertain an application for costs on behalf of the successful party in the proceeding under Sec.145 of the Code, after the disposal of the proceeding has been decided by two Bench decisions ol this Court in Sarju Prasad Sao V/s. Ram Chandra Singh, AIR 1959 Pat 151 = (1959 Cri LJ 506) and Chandrama Rai V/s. Harbans Rai, AIR 1965 Pat 21 = 1965 (1) Cri LJ 65). In the case of Sarju Prasad Sao, the Magistrate passing the final order under Sec.145 had simply said that the first party was to bear pleaders cost incurred by the second party. He had not ascertained the amount which the first party was to pay as costs to the second party. That amount was ascertained by his successor-in-office. A question arose as to whether such a successor-in-office could have ascertained that amount. This Court held that, in view of sub-section (1) of Sec. 559 of the Code, this assessment of cost could be done by the successor-in-office in accordance with the direction of the Magistrate who passed the final order under Sec.145 of the Code. In the case of Chandrama Rai, the Magistrate who passed the filial order under S.145 did not pass any order in respect of payment of cost. On the 30th Nov., 1960, the successful party filed an application before the said Magistrate, who had declared him in possession of the subject of dispute, for costs under Sec.148 of the Code. Before the final order could be passed, the learned Magistrate, who had decided the proceeding, was transferred and another Magistrate succeeded him. The successor Magistrate decided that the second party to the proceeding was entitled to costs and he also ascertained the amount winch was payable to him. The paid order was challenged before this Court saying that it was not a case where the Magistrate passing the order under Sec.145 had at least passed an order in respect of costs, but the actual amount had been ascertained by the successor-in-office. The paid order was challenged before this Court saying that it was not a case where the Magistrate passing the order under Sec.145 had at least passed an order in respect of costs, but the actual amount had been ascertained by the successor-in-office. The said argument was repelled saying that the successor-in-office, after ascertaining the amount of costs, could direct the party to the proceeding to pay the costs to the successful party. Learned counsel for the petitioners has submitted in the instant case that this Bench decision requires re-consideration inasmuch as sub-section (3) of Sec.148 says in clear and unmistakable terms that "the Magistrate passing a decision under Sec.145, Sec.146 or Sec.147 may direct by whom such costs shall be paid". Learned counsel has laid great stress on the words "the Magistrate passing a decision" and hay submitted that this refers to the Magistrate who had passed the final order under S.145. In my opinion, it is difficult to accept this contention. Similar words also occur in Sec.204 of the Code which says that, if, in the opinion "of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding", then the Magistrate shall issue summons for the attendance of the accused. The words "a Magistrate taking cognizance" had been the subject-matter of great controversy in cases where cognizance had been taken under Sec.190 of the Code by a Magistrate A and later the records were placed before a Magistrate B, who was the successor-in-office, for passing an order under Sec.204. This was very common in cases where an inquiry report used to be called for under Sec.202 of the Code and before receipt of the inquiry report the Magistrate who had called for such report might have been transferred or on the date of inquiry report was put up he was not acting as the Sub-Divisional Magistrate or the Magistrate concerned. It has been held by a Full Bench of this Court in Krishnadeo Prasad V/s. Mt. Budhni, AIR 1965 Pat 1 = (1965 (1) Cri LJ 58) (FB) that in such a situation the Magistrate taking cognizance will include the Magistrate who had initially taken cognizance as well as his successor-in-office, either temporary or permanent. It has been held by a Full Bench of this Court in Krishnadeo Prasad V/s. Mt. Budhni, AIR 1965 Pat 1 = (1965 (1) Cri LJ 58) (FB) that in such a situation the Magistrate taking cognizance will include the Magistrate who had initially taken cognizance as well as his successor-in-office, either temporary or permanent. Applying the same principle and for other reasons mentioned in the judgment in Chandarama Rai (supra), from which I find no reason to differ, the Magistrate who passed the final order under Sec.145 or his successor-in-office may entertain an application for costs and determine the actual amount which one of the parties to the proceeding is liable to pay to the party in whose favour the proceeding had been decided. In my opinion, the order passed by the Magistrate in the instant case cannot be held to be illegal on that account. 5. So far as the other aspect of the matter is concerned, as to whether the successful party to a proceeding under Sec.145 is entitled to costs as a matter of course, in view of the language of Sec.148(3) it has to be held that the discretion in this respect rests with the Court concerned. It is up to the Magistrate who is hearing the application for costs to pass an order for costs or to reject the same taking into account the circumstances of a particular case. In this connection I may, however, observe that, while exercising the discretion regarding payment of costs, the Magistrate concerned should be circumspect and cautious. Unless the claim of one of the parties to the proceeding is frivolous, vexatious or he has adopted dilatory tactics for delaying the disposal of the proceeding, he should not be saddled with costs. If the dispute is a bona fide one, which requires a proceeding to be started under Sec.145 and to be decided so far as the Criminal Court is concerned, the party against whom the proceeding is decided cannot ipso facto be held to be responsible for raising an unfounded dispute. In this connection one thing must be borne in mind that the decision to proceed under S.145 is not like a civil suit where the plaintiff approaches the Court concerned for adjudication of his rights and in case of failure the defendant may be compensated by costs for having been drawn to the litigation. In this connection one thing must be borne in mind that the decision to proceed under S.145 is not like a civil suit where the plaintiff approaches the Court concerned for adjudication of his rights and in case of failure the defendant may be compensated by costs for having been drawn to the litigation. A proceeding under Sec.145 is initiated at the instance of the Court concerned when the Court is satisfied that there is an apprehension of a breach of the peace in respect of the land in question and the dispute appears to be bona fide. Apart from that, any such finding is subject to the final decision by a competent Civil Court and it is not uncommon that the Civil Court declares the party against whom the proceeding under Sec.145 had been decided to be entitled to recover possession of the subject of dispute. Keeping in view the aforesaid aspects, the learned Magistrate should examine the records of the case to find out as to whether the claim and conduct of the unsuccessful party was of such a nature that it was only just and proper that the party who had succeeded should be compensated by costs for being involved in the dispute, although he was in peaceful possession of the subject of dispute. 6. From the impugned order it appears that Shri R.N. Maharaj had passed the order for payment of costs on the 9th May, 1969 merely on the ground that the members of the opposite party had been found in possession of the disputed lands and as such they were entitled to costs. I have already pointed out that no such claim flows from sub-section (3) of Sec.148 of the Code. The said sub-section vests discretion in the Magistrate concerned to pass an order for costs in appropriate cases. This discretion is very wide. As such it has to be exercised on well-settled principles. So far as the ascertainment of actual costs is concerned, the learned Magistrate has not mentioned how he had come to the conclusion that the members of the opposite party were entitled to Rs. 970.00 as costs. No doubt, from the order it appears that no show cause was filed on behalf of Khobhari Rai opposing the said application. So far as the ascertainment of actual costs is concerned, the learned Magistrate has not mentioned how he had come to the conclusion that the members of the opposite party were entitled to Rs. 970.00 as costs. No doubt, from the order it appears that no show cause was filed on behalf of Khobhari Rai opposing the said application. Nonetheless, it was the duty of the Magistrate to be fully satisfied not only about the right of the members of the opposite party to receive the costs but about the amount to which they were entitled. Accordingly, I allow the application, set aside the order of the Court below and remit the case to that Court to hear the parties after giving notice regarding the date fixed in the case and to dispose of the application filed by the members of the opposite party for costs in accordance with law in the light of the observations made above. SHAMBHU PRASAD SINGH, J. 7 I agree.