Gobardhan Mahton vs Rambilas Tewari

Wort, J.—This rule is directed as I understand against an order of the Magistrate dated 13th March 1935. The order was made on a petition by a private complainant in a non-cognizable case by which he stated that he was agreeable to pay the costs of the handwriting expert if he were ordered to do so by the Court. On a previous occasion, that is on the 12th March he had presented a petition to the same Court urging grounds why he should not pay the costs of the prosecution, but that the Crown in the circumstances should pay the costs. The substance of those grounds was that as far back as 18th December 1934, the Court ordered the Inspector of the Court to prosecute the case, although as I have already stated the case was a non-cognizable one and had up to to that time been treated as a private prosecution. If in the circumstances the case was prosecuted by the Crown there is no power under which the Court could order the complainant to pay the costs of the prosecution whatever they were. The only difficulty that arose was by reason of the fact that the evidence with regard to which the payment is in dispute had been obtained by the complainant before the order of the 18th December; but it will be seen from the orders made by the Court below or at least it can be gathered that the application for the handwriting expert and the finger-print expert was made by the complainant after that date. I do not think that there is any doubt that after the order of the 18th December 1934, this ceased to be a private prosecution and if that were so the ordinary course would be followed that the Crown should pay the costs. The question resolves itself into the meaning of the petition of 18th March 1935. I think it is impossible to come to any conclusion other than that the petition was meaningless; it is trite and at the same time unnecessary for a party in a criminal case to say he would do something if he was ordered to do it and I do not think that the petition can be construed as an agreement to pay the costs of a Crown prosecution as this undoubtedly was after the date which I have named. That being so, the order which the Magistrate appears to have made on the 13th March that the costs of these two experts be paid out of the sum of money in deposit by the complainant was wrong in law. There is no provision of law under which such an order could he made.

The order of the Magistrate will therefore be set aside and if the money in deposit has been utilised for the payment of these two experts it will be refunded to the complainant and the costs of the prosecution will therefore be paid by the Crown. The rule is made absolute.