Shanmugham vs Krishna Ramasami and others

Mrs. Padmini Jesudurai, J.—The present revision is by the complainant and is directed against the order of the Additional Judicial Second Class Magistrate, Erode, dismissing his complaint under S. 204(4) Crl. P.C., preferred against the respondents herein for an offence under S. 379, I.P.C.

The facts giving rise to the present Revision briefly are as follows: The petitioner presented a private complaint before the above court against the respondents for an offence under S. 397, I.P.C ., alleging that on 23rd March, 1983, they committed theft of 6 HP oil engine bearing No. 256 kept in his premises. After the sworn statement of the complainant was recorded the complaint was taken on file on 2nd December, 1983, as against all the respondents for an offence under S. 379. I.P.C., and posted to 10th December, 1983, for appearance of the respondents. Thereafter, the respondents had entered appearance and the case had undergone some adjournments P.Ws.1 to 3 had been examined on behalf of the petitioner and their cross-examination has been deferred. Finally the case was adjourned for examination of the Sub-Inspector of Police and the petitioner was directed to pay the process fees for issuing necessary summons to the above witness. The petitioner failed to pay the process fees and the case was again adjourned to 12th July, 1984, for the same purpose. Since the petitioner failed to pay the process fees, summons were not issued and the case was posted finally to 21st July, 1984, for which date also the petitioner, failed to pay the process fees. On 21st July, 1984, the trial court passed the impugned order under S.204(4), Crl. P.C., dismissing the complaint on the ground that the petitioner had not paid the process fees for issuing summons to the Sub Inspector of Police and that there was no justification for further adjournment. The present revision is directed against the above order of dismissal under S. 204 (4); Crl. P.C.

Thiru K.N. Basha, Learned Counsel for the petitioner, submitted that the petitioner should not have been called upon to pay process fees since the Criminal Rules of Practice made it clear that in a case under S. 379, I.P.C, the criminal Court had to meet the expenses of the witnesses for the complainant and that, therefore, the trial court was wrong in insisting upon the payment of the process fees for issuing summons to the Sub-Inspector of Police. Learned Counsel also submitted that S.204(4) Crl. P.C. could not be invoked since the respondents-accused had already entered appearance and that, thereafter the provisions of Chap. XIX, Crl.P.C. alone would apply and the court below could only discharge the respondents for reasons to be recorded, if there was no evidence against them, which, if unrebutted, would warrant their conviction. The dismissal under S. 204 (4) Crl. P.C., therefore was not proper.

Per contra: Thiru Balasubramaniam Learned Counsel for the respondents, submitted that three opportunities had been given to the petitioner to pay the necessary process fees and that the complaint itself did not make out any criminal offence and at the most it was only a civil dispute between the petitioner and the first respondent, who were brothers, and that, therefore, the order of the learned Magistrate had to be sustained.

The question that arises for consideration is whether the order of the court below suffers from any illegality calling for interference by this Court under its revisional jurisdiction.

This is a case instituted otherwise than on a police report. The offence complained of was one under S. 309, I.P.C. which is a warrant case. On 2.12.1983, the learned Magistrate, after recording the sworn statement of the petitioner, had acted under S. 204, Crl. P.C and found that there were sufficient grounds for proceeding further and had taken cognizance of the offence and had issued process to the respondents-accused under S. 204 (1), Crl. P.C. The respondents had entered appearance. Thereafter, the case being one instituted otherwise than on a police report and being a warrant case, the court below had to pass on to Chapter 19-B containing S. 244, Crl. P.C. under S. 244 (1), Crl. P.C. the court below has to take all such evidence as may be produced in support of the prosecution. In fact, P.Ws.1 to 3 bad been examined. Sub-S.(2) of S. 244, Crl.P.C. requires the Magistrate to issue summons to any witness for the prosecution if an application is made out by the prosecution. The petitioner had wanted the Magistrate to issue summons to the Sub Inspector of Police. R. 403 of the Criminal Rules of Practice relating to expenses of witnesses in courts in the districts, clearly lays down that the criminal courts will pay, at the rates specified in R. 411 the expenses of complainants and witnesses in cases mentioned in that rule. This includes cases which are described as non-bailable in column S of the Schedule II to the Code. It is, therefore, clear that in a prosecution under S. 379. I.P.C., which is a non-bailable offence, if the complainant applies to the court for summons for the attendance of any of hit witnesses, the expenses for these witnesses have to be paid by the criminal court. The complainant therefore, cannot be called upon to pay the process fees for a witness in a case under S. 379, I.P.C. This would be contrary to the R.403 of the Criminal Rules of Practice. Learned Magistrate, therefore, ought not to have called upon the petitioner to pay the necessary process fees for issuing summons to the Sub Inspector of Police.

That apart, learned Magistrate was also in error when he purported to dismiss the complaint under S. 204(4), Crl.P.C. As already indicated by me earlier, S. 204 coming in Chapter 16, Crl.P.C. lays down the procedure for securing the attendance of the accused. Once the attendance of the accused has been secured in a case under S. 379, I.P.C. the procedure that has to be followed is the one indicated in Chapter 19 of the Code. When the case is instituted otherwise than on a police report, S. 244, Crl.P.C. would apply. S. 204 would not apply to the stage after the accused has appeared or has been brought before a Magistrate. Process fees, referred to in S. 204(4), Crl.P.C. would not be the process fees for securing the attendance of witnesses. After the accused has appeared and if the prosecution seeks the attendance of any witness the section that would apply in S. 244 (2) and not S. 204(4), Crl.P.C. The Magistrate, therefore, could not dismiss the complaint under S. 204 (4), Crl.P.C. After the accused has entered appearance and after some evidence has already been produced by the prosecution, the court can discharge the accused only under S. 245, Crl.P.C. if no case is made out against him or if he considers the charge to be groundless, in either of these contingencies, the Magistrate has to record the reasons for discharging the accused. If, however, it is not a case of discharge under S. 245, Crl.P.C. the Magistrate has to frame a charge under S. 246, Crl.P.C. and proceed as indicated in the subsequent sections. After the accused has entered appearance, the dismissal under S. 204(4), Crl.P.C. is not contemplated. The order of the Magistrate, dismissing the complaint under S. 204(4), Crl.P.C. for failure to pay the process fees to secure the attendance of witnesses to be examined on the side of the prosecution, and that too after the accused had appeared is contrary to the express provisions of the Code and the rules framed thereunder and is therefore illegal. The order, therefore, has to be set aside. The fact that the petitioner and the first respondent are brothers and the dispute is over the ownership of a motor would be of no relevance to the present revision.

In the result, the revision is allowed, the order of the learned Magistrate is set aside and the matter is remitted to the Court below for proceeding further from the stage when the impugned order was passed. Since the matter is already much delayed, the trial court shall dispose of the same expeditiously as possible giving priority to this case.