Chattisgarh High Court
Bhola Shankar Patel vs Vijay Kumar Nishad on 20 February, 2024
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on 31.01.2024
Order delivered on 20.02.2024
CRMP No. 197 of 2024
Bhola Shankar Patel S/o Late Balsingh Patel Aged About 38 Years R/o Main
Road Bhanpuri P.S. Bhanpuri, District Bastar (C.G.) ---- Petitioner
Versus
Vijay Kumar Nishad (Vegetable Commission Agent) Dhiman Engineering
Works, Panch Rasta Ward No.6, Supela Bhilai, P.S. Supela Bhilai, District :
Durg, Chhattisgarh ---- Respondent
(Cause-title taken from Case Information System)
------------------------------------------------------------------------------------------------------------------
For Petitioner : Shri Praveen Kumar Tulsyan, Advocate For Respondent : None appears
---------------------------------------------------------------------------------------------------------
Hon'ble Shri Justice Ravindra Kumar Agrawal CAV Judgment
1. This is an application under section 378(4) of Code of Criminal Procedure, 1973, (hereinafter called as "Cr.P.C.") for grant of special leave to prefer appeal against the order dated 28-11-2023 passed by learned Judicial Magistrate First Class, Bastar, Place Jagdalpur (C.G.) in Complaint Case No. 527/2018, whereby the complaint case filed by the applicant/complainant has been dismissed under Section 204 (4) of Cr.P.C. for non-compliance of court's order and non-payment of process fee.
2. Brief facts of the case are that the complainant/petitioner had filed a Criminal Complaint Case under Section 138 of Negotiable Instruments Act, 1881, before the court of learned Judicial Magistrate First Class, Bastar, Place Jagdalpur, against the respondent/accused. The Criminal complaint was registered as Criminal Complaint Case No. 527/2018, and vide order dated 27-09-2018, process was ordered to be issued to the respondent/accused on payment of process fee by the Crmp 197 of 2024 2 complainant/petitioner. For one or the other reason, the process could not be served upon the respondent/accused and the case was adjourned time to time. Vide order dated 24-01-2019, the bailable warrant was ordered to be issued but the same also could not be served upon the respondent/accused and again the case was adjourned from time to time. On 28-11-2023, when the case was again taken up for hearing, it revealed to the learned Trial court that the complainant/applicant is not paying the process fee as ordered by the learned Trial Court on 05-08- 2023, 14-09-2023, 30-09-2023, 17-10-2023 and 04-11-2023 and then the learned Trial Court has dismissed the complaint case of the complainant/ applicant on 28-11-2023 by invoking the powers under Section 204(4) of the Cr.P.C. Hence, this application for grant of leave to appeal.
3. The learned counsel for the petitioner would submit that the process fee was paid by the complainant/petitioner so many times for service of process upon the respondent/accused but the same could not be served upon him. Therefore, the learned Trial Court should have exercised its discretion to adjourn the case instead of dismissing it. He would further submit that the exercise of jurisdiction of Section 204 (4) of Cr.P.C. is discretionary. When the case was fixed for appearance of the respondent/accused, the same cannot be dismissed for non-payment of process fee. Therefore, the order impugned suffers from material irregularity and illegality and the same is liable to be set-aside.
4. I have heard the learned counsel for the petitioner/complainant and perused the appeal memo and documents filed along with it.
Crmp 197 of 2024 3
5. The foremost question involved in the present application for grant of leave to appeal is that, whether the application for grant of leave to appeal and acquittal appeal against the order impugned is maintainable or not?
6. In the instant case, the complaint case is dismissed under Section 204(4) of Cr.P.C., for non-compliance of the Court's order to pay the process fees for service of process upon the respondent/accused. Section 204 (4) of Cr.P.C provides that by law, any process fees are payable, no process shall be issued until such fees are paid and if such fees are not paid within the reasonable time, the Magistrate may dismiss the complaint case.
7. Section 204 (4) of the Cr.P.C. is reproduced herein below:
Section 204 (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.
8. The exercise of the powers of the Magistrate under Section 204 (4) of Cr.P.C. is discretionary. which requires to be exercised judiciously. The dismissal of the complaint under Section 204(4) of Cr.P.C. is distinct than the dismissal of the complaint under Section 203 or 256 of Cr.P.C. Section 203 of Cr.P.C. provides for dismissal of the complaint when after inquiry in the complaint under Section 200 or investigation (in any) under Section 202 of Cr.P.C., if the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint. Dismissal of the complaint under Section 203 of Cr.P.C. is on substantive Crmp 197 of 2024 4 ground. Section 256 of Cr.P.C. provides for dismissal of complaint for non-appearance or death of the complainant. the dismissal of the complaint under Section 204(4) would relate to the procedural aspect.
9. For clarity, the provisions of Section 203 and 256 of Cr.P.C. are extracted here under:
Section 203― Dismissal of complaint.- If, after considering the statement on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
Section 256―Non-appearance or death of complainant.(1)If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day :Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2)The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
10. In cases where summons are ordered to be issued but not issued for want of process fees, there will be no day appointed for appearance of the accused in the court, as referred to in Section 256(1) of the Cr.P.C. The order of dismissal of the complaint under Section 204(4) of Cr.P.C. for non-payment of process fees is without striking the merits of the case. Dismissing the complaint by virtue of enabling powers of Section 204(4) of Cr.P.C. amounts to termination of the impugned criminal proceeding. Such an order which directly resulting in the termination of the proceeding Crmp 197 of 2024 5 will be a final order and not interlocutory. When there is a specific provision to dismiss a complaint for non-payment of process fees etc., such an order cannot be treated as an order of acquittal. Had the legislature intended that such an order will also amount to an order of acquittal which is coming within the purview of Section 378 of Cr.P.C., there was absolutely no difficulty in using the word "acquit" instead of "dismiss" in Section 204(4) ofCr.P.C. Hence, in cases, in which the process fees are not paid, the accused will not be acquitted but the proceeding will be terminated for the default of the complainant, without acquitting the accused. Therefore, dismissal of the complaint under Section 204 (4) of the Cr.P.C., is not an appealable order as the said order could not be termed as an order of acquittal. If a complaint is dismissed for non-appearance or death of a complainant, the Magistrate would get statutory sanction to do so only under Section 256 of Cr.P.C. This provision mandates acquittal of the accused. The remedy of appeal in cases of acquittal is provided under Section 378 of Cr.P.C.
11. Section 378(4) of Cr.P.C. provides that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
12. In the case of Subhash B. Rao vs K.V. Varghese and another, reported in 2010 SCC Online (Ker.) 2684, the Kerala High Court has held that in cases in which summons are ordered but not issued for want of process fee, there will be no day appointed for 'appearance' of accused in Crmp 197 of 2024 6 Court, as referred to in Section 256(1) of the Code. Hence, in cases in which process fee is not remitted, the accused shall not be acquitted, under Section 256(1) of the Code, even if the complainant is absent. Dismissal of a complaint under Section 204(4) of Cr.P.C. is not an appealable order as the said order could not be treated as an order of acquittal.
13. In case of Chelladurai Vs. Suresh Kumar (Bijju) and other, 2017 SCC Online (Ker.) 7333, the Kerala High Court has held that "it can be seen that impugned proceedings are one dismissing the complaint by virtue of the enabling powers under Sec. 204 (4) of the Cr.P.C. and this amounts to termination of the impugned criminal proceeding. Such an order which is directly resulting in the termination of the impugned criminal proceedings, will be a final order and not interlocutory.
14. Section 397 of the Cr.P.C. deals with the powers of revision conferred on the High Court and Sessions Court. Section 397(2) of Cr.P.C. provides as follows :-
Section 397(2) ― (2)The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
15. If a complaint is dismissed for non-payment of process fees or other fees dealt under Section 204(4) of Cr.P.C., the same is not an acquittal and therefore, it is not an appealable order but a revisable order. If we consider the provisions of Section 398 of Cr.P.C., it appears that while examining the records under Section 397 of Cr.P.C. or otherwise, the High Court or Sessions Judge may direct any subordinate Magistrate to Crmp 197 of 2024 7 make further inquiry into any complaint which has been dismissed under Section 203 or sub-section (4) of Section 204 of Cr.P.C. or into the case of any accused who has been discharged. Thus, the order passed under Section 204(4) of Cr.P.C. is liable to be challenged in the revision proceeding under Section 397 of Cr.P.C.
16. Again in case of Krishnankutty Vs. Ramani, AIRONLINE 2021 Ker. 1110, the Kerala High Court has held in para 21 (ii) of its judgement that :
21(ii)― If a complaint is dismissed for non-payment of process fees or other fees dealt under Section 204(4) Cr.P.C., the same is not an appealable order and therefore, the said order is revisable.
17. This is a case where bailable warrant was issued by the trial court and coercive steps were taken by the trial court for compelling the presence of the accused, but the complainant has failed to take steps and therefore, the court dismissed the complaint. Such an order falls squarely under Section 204(4) of Cr.P.C., which provides that a complaint can be dismissed on failure of payment of certain fees etc. The propriety or legality of the impugned order under Section 204(4) of Cr.P.C. cannot be considered in an appeal under Section 378 of the Cr.P.C. and therefore, this petition for special leave also cannot be entertained.
18. Accordingly, the application for grant of Special Leave to Appeal is dismissed. However, it is made clear that this order will not stand in the way of the petitioner seeking appropriate remedy available under the law.
Sd/-
(Ravindra Kumar Agrawal) Judge padma