1. The question that arises in this petition is whether the successor to the Magistrate who passed a decision under Sections 145 to 147 of the Criminal Procedure Code can pass an order as to costs under Section 148 (3) of the Code.
2. A plain reading of Section 148 (3) indicates that a successor to the Magistrate who passed an order under Sections 145 to 148 cannot pass an order as to costs. As no time limit is laid down in Section 148 (3) there is no objection to an order as to costs being passed on a subsequent application; and since that sub-section relates only to a direction as to by whom such costs shall be paid and whether in whole or in part, there can be no objection to a succeeding Magistrate assessing the costs regarding which an order has already been passed. So that decisions which deal with the questions whether a succeeding Magistrate can assess costs or whether an order as to costs can be made some time after a decision under Sections 145 to 147 has been passed do not help us.
3. There is a notable resemblance between the wording in Section 148 (3),Criminal Procedure Code, and that in Order 47, Rule 2, Civil Procedure Code, with regard to review applications. Against certain classes of orders review applications must he made to the Judge who passed the decree; and it is settled law that 'Judge ' here refers to the person and not to the office. I think a similar interpretation must be made of the word ' Magistrate ' in Section 148 (3); for if it was intended that any other Magistrate holding the same office might pass an order as to costs, the proper word to be used would be ' Court' and not ' Magistrate.' Moreover, the words ' the Magistrate passing a decision ' would be unnecessary if it were intended that the succeeding Magistrate might pass such an order; for such powers in a succeeding Magistrate would then be presumed. Section 559, Criminal Procedure Code, empowers a successor in office to any Judge or Magistrate to exercise the powers and perform the duties of that Judge or Magistrate. The Legislature presumably used that language because it is desirable that the Magistrate who decides a case should also decide by whom costs should be paid and in what part or proportion.
4. In support of the converse interpretation of the words in Section 148 (3) the best that Mr. Sitarama Iyer can quote is a passing remark of Subramania Ayyar, J., in Vythianalha Thambiran v. Mayandi Chetti I.L.R.(1906) Mad. 373
The word ' passing ' which follows the term ' Magistrate ' in the said provision, as I understand it, means no more than that the Magistrate who may award costs, is the officer holding the proceeding under the Chapter or his successor entitled to discharge his function in connection with the matter.
The learned Judge however immediately qualifies this remark by saying,
Even if this would be going too far, and the right construction were that the award of costs should be made by the same Magistrate that deals with the main question in the proceeding, the order here cannot be held to be void or illegal....
A Full Bench of the Allahabad High Court in Kapoor Chand v. Suraj Prasad I.L.R.(1933) All. 301 assumed as a matter beyond question that Section 148 (3) meant what it said. The question came up for direct decision in Nafar Chandra Pal v. Siddhartha Krishna Mazumdar I.L.R.(1920) Cal. 974 and in Manglu Sahu v. Ramdhani Tamboli : AIR1929Pat93 in both of which cases the learned Judges concluded that the words 'the Magistrate passing a decision ' did not include a succeeding Magistrate.
5. I am therefore of opinion that the Magistrate acted without jurisdiction in ordering costs; for he was not the Magistrate who passed the decision under Section 145. The petition is therefore allowed and the order as to costs set aside.