Kerala High Court
Sri.G.Saseendran Nair vs State Of Kerala on 19 September, 2017
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 2ND DAY OF NOVEMBER 2017/ 11TH KARTHIKA, 1939
Crl.Rev.Pet.No. 1423 of 2008 ( )
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CRA.511/2006 of ADDITIONAL DISTRICT & SESSION COURT (FAST TRACK),
TRIVANDRUM
ST.271/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VII, TRIVANDRUM
REVISION PETITIONER/APPELLANT/ACCUSED:
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SRI.G.SASEENDRAN NAIR,
HOTEL AYILLIYAM,T.C.43/2120,
THAKARAPARAMBU ROAD,
SREEKANTESWARAM,
THIRUVANANTHAPURAM.
BY ADV. SRI.SREEKANTH S.NAIR
RESPONDENTS/COMPLAINANT & STATE:
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1. STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
2. K.RAMESH BABU,
T.C.63/1881,RAHUL NIVAS,
AMBALATHARA, POONTHURA P.O.,
THIRUVANANTHAPURAM.
R1 BY PUBLIC PROSECUTOR SRI. SAIGI JACOB PALATTY
R2 BY ADVS. SRI.P.A.AHAMMED
SRI.THOUFEEK AHAMED
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 02-11-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
EL
ALEXANDER THOMAS, J.
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Crl.R.P.No.831 Of 2017
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Dated this the 19th day of September, 2017.
O R D E R
The order under challenge in this Revision Petition is the one rendered by the trial court (Judicial First Class Magistrate Court-I, Kannur), whereby the complaint of he petitioner in S.T.C.No.2362/2016 alleging offence punishable under Sec.138 of the N.I. Act, against the R-1 (accused), has been dismissed by virtue of the enabling powers under Sec.204(4) of the Cr.P.C.
2. This revision was admitted on 14.7.2017 on which day this court had issued notice to R-1 accused by speed post returnable within 15 days. Now, it is reported by the Registry that notice to R-1 has been returned with endorsement 'unclaimed'. Therefore notice to R-1 is only to be treated as having been duly served as the notice has been taken out by Registered Speed Post.
3. Heard Sri.C.K.Sreejith, learned counsel appearing for the petitioner-complainant and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State.
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Crl.R.P.No.831 Of 2017
4. It is pointed out that after the trial court had taken cognizance of the offence in this complaint, summons was duly issued to the accused, but, he had not appeared and hence non bailable warrant was issued against the accused. That since the accused was working abroad, the petitioner wanted sufficient time to ascertain and collect the correct address of the accused. But the petitioner, despite his diligent efforts, could not secure the present correct address of the accused and hence there was delay in submitting the process memo and that the learned Magistrate had dismissed the complaint on 12.5.2017. the impugned order dated 12.5.2017 passed by the trial court in this case reads as follows:
"O R D E R This is a complaint filed under section 190(1)(a) of Cr.PC. for the offence punishable under section 138 of N.I. Act.
Complainant is absent. Represented. After filing the complaint under the N.I. Act, the complainants very often do not take steps to issue process which results piling up of such cases. In the present case also the complainant failed to pay the process fee within a reasonable time. The inaction on the part of the complainant show that he is not diligently prosecuting the case. Hence the complaint is dismissed u/s. 204(4) of Cr.P.C."
In view of the above said aspects, the petitioner has made out a strong case. The petitioner has clearly stated that despite diligent efforts he could not secure the correct address of the accused. Moreover, the Apex Court in the celebrated case in Indian Bank Association & ors. v.
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Crl.R.P.No.831 Of 2017 Union of India & ors., reported in (2014) 5 SCC 590, has held in para 23.2 thereof that the Judicial Magistrate concerned should adopt a pragmatic and realistic approach while issuing summons and the summons must be properly addressed and sent by post as well as by e-mail address got from the complainant and the court in appropriate cases may take the assistance of the police or the nearby court to serve notice on the accused, etc. Therefore, if there was any difficulty, the trial court would have sought the assistance of the competent police authorities through the Public Prosecutor appearing before the court so as to secure the present correct address of the accused and for ensuring that summons is duly served on the accused. That apart, it is the specific case of the petitioner that initially he had taken steps for issuing summons to the accused and that after service of notice on the accused, he did not appear and at that point of time the trial court proceeded to issue non bailable warrant and in such a situation it was held by this Court that when process fee has been duly paid by the complainant in such complaints and summons has been duly served on the accused and thereafter if warrant has been issued by the court for ensuring the appearance of the accused, then it is not the liability of the complainant to pay the process fee for warrant issued in such cases, etc. This has been so held in Ayodya Printers Ltd., ::4::
Crl.R.P.No.831 Of 2017 Ernakulam v. State of Kerala, reported in 2015 (4) KHC 897 = 2015 (4) KLT 251. It has been clearly held therein that if warrant is issued after service of summons or after the appearance of the accused, the complainant may not be mulcted with the obligation to pay any process fee and that in such a case dismissal of complaint under Sec.204(4) of the Cr.P.C on the ground that the complainant had not paid the process fee for serving non bailable warrant to the accused cannot be a justifiable ground for dismissal of the complaint. It will be profitable to refer to paras 15 & 16 of the above said decision, which read as follows:
(see KLT report).
"15. The above discussion would make it clear that the court has the power to direct the complainant to pay process-fees or other fees, as prescribed under the Rules, for the purpose of issuing summons or warrant against the accused under S.204(1) of the Code. If the accused fails to appear before the court as directed in the summons and the summons is proved to have been duly served and no reasonable excuse is offered for such failure, the court may issue a warrant for his arrest under S.87(b) of the code and not under S.204(1)(b) of the Code. The mandate under S.204 (4) of the Code to pay process-fees or other fees payable under any law for the time being in force and the discretion of the court to dismiss the complaint if process-fees are not paid within a reasonable time, are not applicable to the provisions of S.87 of the Code in view of the provisions of sub-s.(5) of S.204 of the Code. That apart, there is no provision under Section 87 of the code requiring the complainant to pay process-fee for issuing warrant under Section 87(b) of the Code. Therefore, the courts should not require the complainant to pay process-fee for issuing warrant under Section 87(b) of the Code and consequently, the court should not dismiss the complaint in such cases under S.204(4) of the Code for non-payment of process-fee. It is reiterated that if the accused abstains after the service of summons or after his appearance before the Court, the warrant will be issued under S.87(b) of the Code which requires no process fee to be paid by the complainant. The steps to be initiated under Ss.82 and 83 of the Code in such cases are in continuation of the above said proceedings and consequently, the ::5::
Crl.R.P.No.831 Of 2017 steps initiated in such cases do not require any process fee to be paid by the complainant. Therefore, the Court cannot dismiss the complaint under S.204(4) of the Code for non-payment of process-fee in such cases. On the other hand, if the warrant is issued prior to the service of summons or appearance of the accused before the Court or his production before the Court, process-fee is required to be paid by the complainant in view of the provisions of S.204 of the Code. Consequently, in the further proceedings in such cases where Ss.82 and 83 steps are issued, the complainant is bound to pay the process-fee and consequently, the Court is having the discretion to dismiss the complaint in such cases under S.204(4) of the Code for non-payment of process-fee.
The above discussion would lead to the following conclusion:- a) If summons is issued in a case, the complainant is bound to pay process-fee; b) If warrant is issued in a case before the service of summons on the accused or before the appearance of the accused before Court, the complainant must pay process-fee; c) If proceedings under Ss.82 and 83 of the Code are initiated in a case before the service of summons on the accused or before the appearance of the accused before the court, the complainant must pay the process fee; d) If warrant is issued after the service of summons or after the appearance of the accused before the court, the complainant need not pay any process-fee; and e) If proceedings under Ss.82 and 83 are initiated after the service of summons on the accused or after the appearance of the accused before the Court, the complainant need not pay any process-fee.
16. In "(a) to (c)" mentioned above, the court is vested with the discretion to dismiss the complaint under S.204(4) of the Code for non-payment of the process-fee.
In (d) and (e) mentioned above, the court is not having the discretion to dismiss the complaint under S.204(4) of the Code for non-payment of process- fee."
5. In the light of all these aspects, this Court is of the considered view that the impugned order needs interdiction by this Court. Accordingly, it is ordered that the impugned order dismissing the complaint under Sec.204(4) of the Cr.P.C, will stand set aside and the complaint in S.T.No.2362/2016 on the file of the Judicial First Class Magistrate Court-I, Kannur, will stand restored to the trial court. The complainant and the counsel for the complainant will personally ::6::
Crl.R.P.No.831 Of 2017 appear before the trial court at 11:00 a.m. on 28.10.2017, on which day the learned Magistrate shall proceed further with the complainant in accordance with law. It is made clear that if the present correct address of the accused is not known to the complainant, then the trial court could seek the assistance of the competent police authorities concerned as held by the Apex Court in Indian Bank Association's case (supra) and in that regard, the trial court may issue necessary direction to the learned Assistant Public Prosecutor attached to that court for facilitating effective and appropriate action in that regard.
With these observations and direction, the Crl.R.P stands finally disposed of.
Sd/-
ALEXANDER THOMAS, Judge.
Bkn/-
// true copy // P.A to Judge.