The successor Magistrate has the jurisdiction to award costs in a proceeding under Section 145 of the Code of Criminal Procedure, even if the decision in the main case had been given by his predecessor, unless there is any other provision in the Code of Criminal Procedure or any other provision of law that stands in his way.

U.N.Sinha, J.

1. This application has been filed in the first party in a proceeding under Sec.145 of the Code of Criminal Procedure, complaining of an order dated the 28th February, 1961, passed by Sri S. K. Ghosh, Subdivisional Magistrate, Sadi Arrah, who had succeeded Sri S. K. Singh Subdivisional Magistrate Arrah, who had passed the final order in a proceeding under Sec.145 of the Code on the 10th October, 1960. The proceeding between the parties, under Sec.145 of the Code of Criminal Procedure terminated on the 10th October, 1960, when Sri Singh gave his decision, declaring the second party, "to be entitled to possession until evicted from the disputed land in due course of law. The first party, their heirs and successors-in-interest were forbidden to go over the disputed land until they are able to evict the members of the seeond party in due course of law. It appears from the records of the case that in passing the record (order?) dated 10-10-1960, the learned Magistrate had made no provision for payment of costs, envisaged by Sec.148 Sub-section (3) of the Code. Thereafter, on the 30th November, 1960, the second party filed an application before Sri Singh under Sec.148 of the Code, praying for the costs of the proceeding. Notices to the first party were issued by Sri Singh in the due course. Before final hearing of the matter, however, Sri S. K. Singh was transferred and Sri S. K. Ghosh succeeded him.

It was contended by the first party before Sri Ghosh, that Sri Ghosh had no power under the Code of Criminal Procedure to pass any order regarding costs of the proceeding under Sec.145, as he was not the Magistrate who had given the decision in the proceeding. The question mooted before Sri Ghosh was whether as the successor-in-office of Sri S.K. Singh, Sri Ghosh could pass an order contemplated by Sec.148 Sub-section (3), when the decision in the main case had been given by Sri Singh. Upon hearing the parties. Sri Ghosh came to the conclusion that the reasonable view to be taken by him was that he had jurisdiction to pass order for costs as the successor-in-office of Sri Singh. The amount of costs was, however, not determined by Sri Ghosh by his order dated the 28th February, 1961, against which the first party have come up to this Court, and Sri Ghosh ordered that he would hear further arguments for the determination of the actual amount to be awarded as costs presumably in favour of the second party.

2. Sri Keshri Singh, appearing for the first party has relied upon Sec.148 Sub-section (3) of the Code of Criminal Procedure and upon the case of Bagavandas Moopanar V/s. Muhammad Gani Rowther, AIR 1943 Mad 478, and upon the case of Sarju Prasad Sao V/s. Ramchandra Singh, AIR 1959 at 151 and has contended that Sri S.K. Ghosh had no jurisdiction to award costs in favour of the second party. Reference has also been made to Sec. 559 of the Code and it is urged that Sub-section (1) of that section cannot be brought in aid, because of the expression, "Subject to the other provisions of this Code" occurring therein. It is argued by Sri Keshri Singh that the expression, "subject to the other provisions of this Code", at once bring in the limitation imposed by the expression, "the Magistrate passing a decision under Sec.145", mentioned in Sub-section (8) of Sec.148, with the result that Sri S.K. Ghosh as the successor-in-office of Sri Singh could not have taken up the matter and pass an order for costs. Learned counsel for the opposite party has, on the other hand, contended that Sec.148(8) of the Code read with Sec. 559 empowered Sri S.K. Ghosh to deal with the matter in question, as the successor-in-office of Sri S.K. Singh. It is argued that the expression, "the magistrate passing a decision under Sec.145", appearing in Sub-section (3) of Sec.148, cannot exclude the successor-in-office of the magistrate, upon the interpretation put on Sec. 559 Sub-section (1) by learned counsel for the petitioners. It is urged that Sri S