Sesha Dev Parida vs Udayanath Sahoo and Another

G.B. Patnaik, J.—Complainant is the Petitioner against the order of the learned Magistrate dismissing the complaint on 8.3.1984 for default in exercise of powers u/s 204 of the Code of Criminal Procedure.

On the basis of the allegations made in the complaint petition, the Magistrate took cognisance under Sections 379 and 323, Indian Penal Code, and issued summons by order dated 5.1.1984 fixing 23.1.1984 for date of return on 9.2.1984, on receipt of the service return, the Magistrate directed the complainant to take steps or fresh service since the service had been effected by affixture due to absence of the accused persons. On 20th, of February, 1984. as no steps were taken, inasmuch as fresh reguisites had not been filed, the lagistrate adjourned the matter to 8.3.1984 and on 8.3.1984 as equisites had not been file the Magistrate dismissed the complaint for default. It is this order of the Magistrate which is being impugned the present revision application.

Mr. Mahadev Mishra, the learned Counsel for the Petitioner, Intends that the order of the Magistrate dismissing the complaint in exercise of powers u/s 204, Code of Criminal Procedure, is without jurisdiction since under Sub-section (4) of Section 204, a Magistrate Can dismiss the complaint only when by any law for the time being inforce any process fee or other fees are payable and no such fees are paid within a reasonable time. According to Mr. Mishra, the learned Counsel for the Petitioner, no fee is payable in case of a cognisable offence as would appear from Chapter-I, Part-IV of the G.R. & C.O. (Criminal) issued by the High Court of Orissa. Since no fee is payable for issue of summons, in case of a cognisable offence and since admittedly the offence u/s 379, Indian Penal Code, is a cognisable, one, the Magistrate could not have dismissed the complaint for non-filing of the requisites, namely the copy of the complaint petition in exercise of his power under Sub-section (4) of Section 204 of the Code of Criminal Procedure. I find sufficient force in the aforesaid contention. To attract Sub-section (4) of Section 204 of the Code of Criminal Procedure, it must be established that the complainant is required to pay any process fee or other fee by any law in force. Since the complaint is not required to pay fee for issuance of summons to the accused in case of a cognisable offence, and he was only required to file a copy of the complaint petition for issuance of summons, the Magistrate had no jurisdiction to dismiss the complaint in exercise of powers u/s 204(4) of the Code of Criminal Procedure. Accordingly, the order dated 8.3.1984 passed by the learned Magistrate is set aside and the matter is remitted back to the stage where it was on 8.3.1984. As there has been unusual delay in the matter, the Magistrate would do well in disposing of the proceeding as expeditiously as possible.

This Criminal Revision is accordingly allowed.