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IN THE HIGH COURT OF KERALA
P.D. Rajan, J.
Surendrakumar - Appellant
Vs.
State of Kerala - Respondent
Crl. R.P. No. 4572 of 2006
Decided On : 29-10-2015
Kerala Criminal Rules of Practice 1982 - Rule 273 - Private complaint - Process fee - Warrant was issued against accused but process fee was not remitted - Whether process fee has to be paid for issuing warrant in a private complaint - Held, Table of process fees payable for executing process by High Court and Subordinate Civil and Criminal Courts are published in Kerala Gazette which was periodically modified on several times - Also Table of process fees chargeable for serving and executing process issued by any criminal court in case of offences for which police officers may arrest without warrant are also notified - Petitioner need not pay process fee for issuance of warrant in private complaint is unsustainable in law - However under Criminal Rules of Practise there is no discrimination for payment of process fee in summons case and warrant case - Therefore complainant has to pay required amount of process fee according to rules of Criminal Rules of Practice Kerala 1982 has to be followed.
Certainly. Based on the provided legal document, here are the key points:
Issue of Process Fees for Warrants in Private Complaints: The law stipulates that process fees are payable when issuing process such as warrants or summonses. The process fee payable is determined by the rules published in the Kerala Gazette and is periodically updated (!) (!) .
Obligation to Pay Process Fees: The party applying for the issuance of process, including warrants, must file a batta memo and pay the required process fees as per the rules. The contention that no process fee is required for issuing warrants in private complaints is not sustainable under the law (!) .
Legal Requirement for Payment: The rules explicitly specify that no process shall be issued until the applicable process fees are paid. If fees are not paid within a reasonable period, the complaint may be dismissed (!) (!) .
Discretion in Warrant Issuance: While courts have discretion to issue warrants or summonses, the issuance of coercive process like warrants without the payment of requisite fees is not legally justified. The court must record reasons for issuing warrants, especially if issued in lieu of or in addition to summonses (!) (!) (!) .
Non-Execution of Warrants: If a warrant has been issued but not executed due to reasons such as the accused being unavailable or the applicant being laid up, the complaint should not be dismissed solely on the grounds of non-payment of process fees at that stage. The court should consider the circumstances and give an opportunity to proceed further (!) .
Remand and Reconsideration: When a complaint is dismissed under certain procedural provisions, the court has the authority to remand the matter for fresh consideration, especially if the reasons for non-compliance are justified and the interests of justice demand it (!) .
In summary, the legal framework emphasizes that process fees are mandatory for issuing warrants, but dismissing a complaint solely on the basis of non-payment without considering the circumstances or providing an opportunity for the applicant to comply may not be justified. The court must follow procedural rules, record reasons when issuing warrants, and ensure justice is served.
P.D. Rajan, J.
1. The short question that arises in this Revision Petition is whether a complaint can be dismissed under Section 204(4) of the Code of Criminal Procedure (hereinafter referred to as the 'Code') on the ground of non payment of batta for execution of warrant?
This Revision Petition is directed against the order in C.C. 2798 of 2002 of the Judicial First Class Magistrate-I, Aluva dismissing the complaint under Section 204(4) of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.). Revision petitioner filed the above case against the accused for offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act'). The complainant's case is that accused borrowed a sum of Rs. 75,000/- and in discharge of that debt, he issued a cheque. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds. He demanded the amount by giving a notice in writing, but there was no payment hence he filed a complaint in the above court. The sworn statement was taken and summons was ordered. Since the accused is residing outside the jurisdiction of the trial court, a warrant was issued. But the complainant failed to take steps, hence the complaint was dismissed under Section 204(4) of the Code. Being aggrieved by that, he approached this court with this Revision Petition.
The main contention of the revision petitioner is that accused is residing outside the territorial jurisdiction of the court. Even after summons and warrant accused did not appear before court. On 20.9.2006, warrant was issued against the accused and it was handed over to the revision petitioner but he was laid up due to fever and could not remit batta for executing the warrant. The case was posted on 7.10.2006 and filed an application to issue fresh warrant, but on that day the complaint was dismissed.
2. Section 204 of the Code relates to issue of process for the attendance of the accused. It reads as follows:
"Issue of process.-
(1) if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of Section 87".
3. The contention put forward by the Public Prosecutor is that as per the direction of the court process fee was not remitted in the trial court. When any law directs to pay process fee and no process has been remitted within a reasonable time the dismissal of the complaint is right. When warrant issued was not executed there is no reason to interfere and Magistrate had no other alternative.
4. When court issues process it means that the court has taken cognizance of the offence and has decided to initiate proceedings against accused. A reading of Section 204 of the Code, it is found that if the Magistrate is of the opinion to take cognizance of an offence alleged in the complaint, he may issue summons for the appearance of the accused or either issue warrant or summons in a warrant case. To procure the presence of the accused during trial is the first respo
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