SESHA DEB PANDA Vs. UDAYNATH SAHOO

JUDGEMENT

(1.) Complainant is the petitioner against the order of the learned Magistrate dismissing the complaint on 8-3-1984 for default in exercise of powers under section 204 of the Code of Criminal Procedure.

(2.) On the basis of the allegations made in the complaint petition, the Magistrate took cognisance under sections 379 and 323, Indian Penal Code, and issued summons by order dated 5-1-1984 fixing 23-1-1984 for date of return. On 9-2-1984, on receipt of the service return, the Magistrate directed the complainant to take steps for fresh service since the service had been effected by affixture due to absence of the accused persons. On 20th of February, 1984, as no steps were taken, in as much as fresh requisites had not been filed, the Magistrate adjourned the matter to 8- 3-1984 and on 8-3-1984 as requisites had not been filed, the Magistrate dismissed the complaint for default. It is this order of the Magistrate which is being impugned in the present revision application.

(3.) Mr. Mohadev Mishra, the learned counsel for the Petitioner, contends that the order of the Magistrate dismissing the complaint in exercise of powers under section 204, Code of Criminal Procedure, is without jurisdiction, since under sub-section (4) of section 204, a Magistrate can dismiss the complaint only when by any law for the time being in force any process fee or other fees are payable and no such fees are paid within a reasonable time. According to Mr. Misra, the learned counsel for the petitioner, no fee is payable in case of a cognisable offence- as would appear from Chapter I. Part IV of the G.R. and C.O. (Criminal) issued by the High Court of Orissa, Since no fee is payable for issue of summons, in case of a cognisable offence and since admittedly the offence under section 379, Indian Penal code, is a cognisable one, the Magistrate could not have dismissed the complaint for non-filing of the requisites, namely the copy of the complaint petition in exercise of his power under sub section (4) of section 204 of the Code of Criminal Procedure. I find sufficient force in the aforesaid contention. To attract sub-section (4) of Section 204 - of the Code of Criminal Procedure, it must be established that the complainant is required to pay any process fee or other fee by any law in force. Since the complainant is not required to pay any fee for issuance of summons to the accused in case of a cognisable offence, and he was only required to file a copy of the complaint petition for issuance of summons, the Magistrate had no jurisdiction to dismiss the complaint in exercise of powers under section 204(4) of the Code of Criminal Procedure. Accordingly, the order dated 8-3-1984 passed by the learned Magistrate is set aside and the matter is permitted back to the stage where it was on 8-3-1984. As there has been unusual delay in the matter, the Magistrate would do well in disposing of the proceeding as expeditiously as possible. This Criminal Revision is accordingly allowed. Petition allowed