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Binoda Sundari Chowdhurani Vs. Kali Kristo Pal Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal387
AppellantBinoda Sundari Chowdhurani
RespondentKali Kristo Pal Chowdhury and ors.
Cases ReferredIssur Chowdhry v. Bibijan Khatun
Excerpt:
criminal procedure code (act x of 1882), section 148, para. 3 - 'magistrate passing a decision,' meaning of--order for costs. - .....this application was not taken up and disposed of at once, but was postponed at the request of soshi mohun pal chowdhury and others, pending the result of an application to this court in the original proceedings, but on june 16th 1894, the costs were assessed and were adjudged to be payable by the objectors soshi mohun pal chowdhury and others to the applicants.2. on the 14th august soshi mohun pal chowdhury and lal mohun pal chowdhury applied to this court to have the order set aside, but that application was refused.3. on the 3rd september, the present petitioner, binoda sundari, made a similar application, and obtained a rule which the learned advocate-general now seeks to support on the ground that the magistrate, having disposed of the proceedings finally on december 12th 1893,.....
Judgment:

Beverley and Banerjee, JJ.

1. This rule arises out of a proceeding under Section 145 of the Criminal Procedure Code in which Binod'a Sundari Chowdhurani, the petitioner before us, was one of certain objectors, described as Soshi Mohun Pal Chowdhury and others, the applicants in the proceeding being Kali Kristo Pal Chowdhury and others. The proceedings terminated in favour of the applicants on December 19th 1893, and two days after, namely on December 21st 1893, the applicants applied for costs under Section 148. This application was not taken up and disposed of at once, but was postponed at the request of Soshi Mohun Pal Chowdhury and others, pending the result of an application to this Court in the original proceedings, but on June 16th 1894, the costs were assessed and were adjudged to be payable by the objectors Soshi Mohun Pal Chowdhury and others to the applicants.

2. On the 14th August Soshi Mohun Pal Chowdhury and Lal Mohun Pal Chowdhury applied to this Court to have the order set aside, but that application was refused.

3. On the 3rd September, the present petitioner, Binoda Sundari, made a similar application, and obtained a rule which the learned Advocate-General now seeks to support on the ground that the Magistrate, having disposed of the proceedings finally on December 12th 1893, had no jurisdiction to make an order for costs on a subsequent date.

4. It seems that the present petitioner never appeared in the original proceedings, and it is therefore contended by Mr. Ghose, who shows cause, that she is not bound by the Magistrate's order and has no locus standi in this Court. But it seems clear that she was one of the objectors described as Soshi Mohun Pal Chowdhury and others in the proceedings, and that as such she is liable for the proportion of the costs which that set of objectors was adjudged to pay.

5. Mr. Ghose next urges that the application of Soshi Mohun Pal Chowdhury to this Court, having been rejected on the 14th August last, the Court had no power to entertain a similar application by the petitioner on the 3rd September. In answer to this contention, it is sufficient to say that the petitioner now before us was not a party to the application of August 14th.

6. Upon the merits the Advocate-General has relied on an unreported case, Issur Chowdhry v. Bibijan Khatun, decided by Macpherson and Banerjee, JJ. on the 5th January 1891. In that case the learned Judges expressed the opinion that an order for costs ought to be made at the time of passing the decision, but the case was actually decided upon another ground. The words of Section 148 are as follow: '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 Section 145, Section 146 or Section 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.'

7. The learned Advocate-General con tends that the words 'the Magistrate passing a decision' should be construed to mean not merely the Magistrate who passes the decision, but at the time of passing the decision. This view derives some support from the corresponding sections in the Code of Civil Procedure, (Sections 218, 219), from the latter of which sections the words of Section 148 appear to have been borrowed. Section 218 of the Code of Civil Procedure appears to require that the order for costs of any application should be made when the application is disposed of, unless for any reason the consideration of the matter is reserved for any future stage of the proceedings. The award of costs under Section 148 of the Code of Criminal Procedure is a quasi civil proceeding, and we think the same rule should prevail.

8. In the present case the decision was passed on December 19th 1893, and the application for costs was made on the 21st, and although that application was not disposed of, and the order for costs was not made, till June 16th 1894, the delay was due to the action of the objectors. That being so, and the order for costs having been made by the Magistrate who passed the order under Section 145, we cannot say that the order was void for want of jurisdiction; and having regard to all the circumstances of the case, and there being no suggestion that the order is unjust or improper on the merits, we do not think that this is a fit case for our interference in the exercise of our discretionary power of revision, under Section 439 of the Code of Criminal Procedure.

9. We accordingly discharge the rule.


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