MOOL CHAND Vs. PRAKASH CHAND GUPTA

JUDGEMENT

(1.) This revision is directed against a revisional order dt. 17-3-1990 of VIth Addl. Sessions Judge, Gwalior, Setting aside order dt. 11-1-1988 of Judicial Magistrate First Class, Gwalior, rejecting complainant's application for examination of complainant and his case.

(2.) Non-petitioner No.1 Prakash Chand Gupta, an advocate at Gwalior, filed a complaint in the Court of Judicial Magistrate First Class, Gwalior, in which by order dt. 1-6-1985 process was directed to be issued to the accused persons for offences under Sections 500 and 506 (Part II), I. P. C. The case was at the stage of evidence before charge. On 15-12-1987, the complainant and his witnesses remained absent. The learned Magistrate thereupon closed the complainant's evidence before charge. Shortly thereafter on the same day, the complainant appeared and made an application for cancellation of the order closing his evidence, and for leave to examine himself and his witnesses. That application was rejected by an unsigned order dt. 11-1-1988 by the learned Magistrate. It is possible that the order was not inadvertently signed by the learned Magistrate. Be that as it may the complainant feeling aggrieved with the order dt. 11-1-1988, filed a revision in the Court of Session, which was heard and allowed by VIth Additional Sessions Judge, Gwalior, by order dt. 17-3-1990, whereby the Magistrate's order rejecting the complainant's application dt. 15-12-1987 was set aside, and direction was given to the Magistrate's Court to summon and examine witnesses mentioned in the complainant's application. Now feeling aggrieved by the order of learned Additional Sessions Judge, two out of the six accused persons impleaded in the complaint, have filed the present revision.

(3.) The reasoning employed by the learned Magistrate in his order dt. 11-1-1988 was that the complainant had earlier failed to deposit process-fee and diet-money for his witnesses and so his witnesses could not be summoned and examined on 15-12-1987. The complainant's evidence before charge was, therefore, rightly closed on 15-12-1987. On that ground, the complainant's application for being permitted to examine himself and his witnesses and for setting aside of the previous order dt. 15-12-1987 was rejected. The learned Additional Sessions Judge found fault with the reasoning of the learned Magistrate, observing that in every warrant case instituted upon complaint, it is, under S. 244, Cr. P. C. the duty of the Court to summon the prosecution witnesses without payment of process-fee and diet-money by the complainant. Even the reasoning of the learned Additional Sessions Judge was not wholly correct. It is wrong to say that in every warrant case instituted upon complaint, the complainant is not required to pay process-fee and deposit diet-money for his witnesses. For instance, a case relating to bigamy under Section 495, I. P. C. instituted upon complaint is a warrant case, since the offence under Section 495, I. P. C. is punishable with imprisonment exceeding two years. But the offence under Section 495, I. P. C. is, vide entry in Col. No. 4 against that offence in the First Schedule of the Criminal P. C. 1973, a non-cognizable offence. In such a case the complainant is required to pay process-fee for summoning of witnesses. See the case of Ram Sewak v. Savitribai, reported in 1993 MPLJ 480. In that decision, the provisions with regard to payment of process-fee in criminal cases, have been explained and analysed. The true legal position is that in a cognizable case process-fee is not payable, whether the case was instituted on complaint or not. As explained in that decision the question whether process-fee is payable in a given criminal case, does not depend upon whether the case is triable as a warrant case. It does not also depend upon the quantum of punishment prescribed for the offence. It depends upon whether the case is a cognizable case or not. If it is a cognizable case, then process-fee is not payable under any circumstances. This position does not admit of any exceptions.