1. In a reference of this kind the Sessions Judge should have stated the facts clearly and consecutively. They are as follows:
2. One Yamana Rao was convicted of an offence under Section 323 of the Indian Penal Code by the Deputy Magistrate of Narsaraopat on the 24th April 1899, and was ordered to pay a fine of Rs. 15 and also to pay 'the complainant's costs of the prosecution.'
3. In May 1900 the Deputy Magistrate issued a warrant for the collection of Rs. 12-4-0 from the accused. This sum was made up as follows: Rs. 2-4-0 Court and process fees paid by the complainant; Rs. 10 two fees of Rs. 5 each paid by the complainant to the medical officer for a certificate and for giving evidence in the case.
4. The accused objected to the recovery of these sums on the ground that they were not assessed at the time when the judgment of the Deputy Magistrate was pronounced, but the Deputy Magistrate refused to review his order or withdraw the warrant.
5. In the explanation furnished by the Deputy Magistrate to the Sessions Judge, the Deputy Magistrate states that the sum of Rs. 2-4-0 was levied under Section 31 of the Court Fees Act, and that the levy of the Rs. 10 was intended to be made under Section 545, Criminal Procedure Code.
6. The Sessions Judge refers the case on the ground that the whole order of the Deputy Magistrate to levy Rs. 12-4-0 was illegal. We are unable to agree in this view so far as concerns Rs. 2-4-0. The levy of this sum was warranted by Section 31 of the Court Fees Act. The opinion of the Sessions Judge that this section must be held to be modified by Section 545, Criminal Procedure Code, is incorrect, Each section provides for a separate matter. Section 31 of the Court Fees Act requires the Magistrate to direct the accused to repay to the complainant in certain cases the amount of Court and process fees paid by the complainant under the provisions of the Court Fees Act. Section 545, Criminal Procedure Code, gives a Magistrate a discretion in certain cases to grant to the complainant out of any fine levied from the accused, the expenses properly incurred in the prosecution and also compensation for injury caused by the offence committed. The duty of the Magistrate to order payment of Court and process fees under Section 31 of the Court Fees Act is imperative, whereas under Section 545 of the Code of Criminal Procedure he has a discretion be award the expanses of the prosecution or to refuse to do so, It follows that Section 545 of the Criminal Procedure Code must be taken to exclude those expenses in regard to which 'the Court has no discretion.
7. The order of the Deputy Magistrate therefore as regards Rs. 2-4-0 must be upheld.
8. The order as to Rs. 10 is clearly unsustainable, for although the medical officer's fees were expanses properly incurred in the prosecution, they could only be awarded to the complainant out of the fine levied from the accused, and could not be levied from the accused in addition to the fine.
9. The part of the Deputy Magistrate's order must be cancelled. In lieu thereof, however, we direct that the sum of Rs. 10 be paid to the complainant out of the fine collected from the accused.