Harendra Krishna Bagchi and Others vs Balkumar and Others

Adami, J.—It appears that the petitioners obtained an order in their favour in proceedings u/s 145 C.P.C. and were awarded costs to the amount of Rs. 500 on the 23rd December 1919. They applied for distress warrants in March 1920 and distress warrants were issued but in May 1920 the petitioner withdrew their claim for costs as against the opposite party No. 7, who, as a fact, had given evidence in their favour and taken their said. The Magistrate allowed the name of the opposite party to be taken out of the warrant. As a result of the distress only Rs. 71 were recovered and for a considerable space of time, the petitioners do not seem to have taken any further steps to recover the balance. On the 7th March 1922, however, they applied to the Magistrate, who had succeeded the Magistrate who passed the order u/s 145 Cr.P.C., for a further distress warrant to recover the balance. On the 17th May 1922 this Magistrate rejected the application; the ground given was that the petitioners had been slack in waiting so long to make their application and also that it is impossible to execute a distress against only the opposite party 1 to 6 and to exclude No. 7 when the order for costs was passed against the opposite party jointly and severally. On the 26th June the petitioners made a fresh application asking for recovery of costs from all the opposite party; and this application was again rejected and it is against the order of rejection that the present application is made to this Court. The chief ground, which the learned Magistrate took, was that on the wording of Section 148 sub-section (3) of the Code of Criminal Procedure, it was optional for the Magistrate to either take steps for recovery of costs as if they were fines or to refuse to do so; and be based his refusal on the ground that there had been long delay in making the application.

Now, an order had been made granting costs to the petitioner and there is no doubt that if the Magistrate who passed that order still held office he would have enforced his order. The learned Magistrate now maintains that it is in his power, although his predecessor had ordered the costs to be recovered, to exercise discretion and refuse to carry out that order. In my opinion the wording of Section 148 sub-section (3) "all costs so directed to be paid may be recovered as if they were fines" does not give the Magistrate a discretion to refuse to recover the costs. It merely points out the way in which those costs are to be recovers and the reference is merely to Section 386 Cr.P.C. The use of the words "may in his discretion" in Section 386 cannot be used for the purpose of interpreting the words "may be recovered" in section 148. The discretion in Section 386 only refers to cases where there has been a conviction and sentence and the sentence directs that in default of payment of fine, the offender shall be imprisoned." To my mind there is no doubt that the petitioners were entitled to insist that steps should be taken to recover the amount of costs awarded and that the Magistrate had no option to refuse to take steps.

It is then urged that the delay in making the application for a farther warrant entitles the Magistrate to refuse to grant the application. The petitioners had six years within which to apply for recovery of the costs and any time within those six years, they had a right to go before the Magistrate and ask him to take proper steps to recover the amount. I think, therefore, that the order of the Magistrate was wrong and that he should have issued distress warrants as desired by the petitioners.

With regard to the recovery of costs from the opposite party No. 7 the Magistrate had excused him from payment and it will be open to the petitioners in applying for distress warrants to exempt him from the list of persons from whom the costs are to be recovered. The order of the Magistrate must, therefore, be set aside and opportunity must be given to the petitioners to recover their costs as provided by the law.