NAZIRUDDIN KHAN Vs. SRIPATI BISWAS

JUDGEMENT

(1.) THESE are three petitions filed on behalf of the respective petitioners in criminal Revision Cases Nos. 185, 198 and 228 of 1970, for a refund of the excess court fees paid at the time of the filing of the revisional applications under section 439 of the Code of criminal Procedure and are taken up for disposal together as these involve the same points.

(2.) THE facts leading on to the filing of these petitions may be put in a short compass. The petitioners filed three revisional applications in this court under section 439 of the Code of criminal Procedure for setting aside the impugned orders as mentioned therein and a court-fee of Rs. 5/- was paid on each of these applications by the learned advocate Mrs. Mukti Moitra. Three Rules were issued upon the said revisional applications, being Criminal revision Cases Nos. 185, 198 and 228 of 1970. Two of these Rules, viz. Criminal Revision Cases Nos. 228 and 185 of 1970 have since been disposed of on the 5th May and the 24th July, 1970 respectively. These three petitions were filed by the learned Advocate before the Registrar, High Court, Appellate side, Calcutta on the 18th April, 1970 for a refund of the excess court-fees paid on the ground inter alia that the court-fee payable on such revisional applications under section 439 of the code of Criminal Procedure is only rs. 2/- each and that the payment of the excess court-fees was due to an erroneous view taken by the department at the time of the filing. It was inter alia submitted in the petitions for refund that the proper court-fee payable on such revisional applications is rs. 2/- only, inasmuch as under section 50 (2) of the West Bengal Act X of 1970 all suits and proceedings instituted before the commencement of the West bengal Court-Fees Ordinance, 1969, and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall, notwithstanding the repeal of the Court-Fees Act, 1870 be governed by the provisions of the said Act, and the Rules made thereunder whereby a court-fee of Rs. 2. 00 only is to be paid on such revisional application; that in any event, even under the new Act X of 1970 as enjoined in item No. l (k) (iii) of schedule II the amount payable by way of court-fee on a criminal motion would be Rs. 2/- only; that because of the insistence of the department a court-fee of Rs. 5. 00 on each application had to be paid; and that the same being clearly bad in law, the excess amount paid should be directed to be refunded. Because of the importance of the point raised, the office placed before this bench the said three applications for refund of court-fees along with the reports thereon by the Registrar, Appellate side and the Stamp Reporter, for such directions or orders as considered fit and proper. The applications thereafter were placed before the Bench for necessary orders and appeared in the list for hearing.

(3.) THE pith and substance of Mrs. Moitra's contention is that under section 50 (2) of the West Bengal Act x of 1970, the court-fees payable for the three revisional applications will be the same as under the provisions of the repealed Act viz. , the Court-Fees Act vii of 1870 and under the latter Act, the Court-fee payable on such applications is Rs. 2/-only. Mrs. Moitra further urged that even under the new act, viz. , the West Bengal Act X of 1970, the court-fee payable on such revisional application under section 439 of the Code of Criminal Procedure will be the same, in view of the provisions of item No. 1 (k) (iii) of schedule II of the said Act and that being so, the amount of court-fees realised in excess of the sum legally payable, should be refunded to the party in the interests of justice.