HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 50 Case :- APPLICATION U/S 482 No. - 19614 of 2011 Petitioner :- Smt. Geeta Respondent :- State Of U.P. Petitioner Counsel :- Anoop Trivedi Respondent Counsel :- Govt.Advocate Hon'ble S.C. Agarwal,J.
Heard Sri Anoop Trivedi, learned counsel for the applicant and Sri D.R. Chaudhary, learned Government Advocate on behalf of the State of U.P.
This Application u/s 482 Cr.P.C. has been filed with a prayer to quash the order dated 11.3.2011 passed by A.C.J.M., Court No.5, Meerut and to further direct him to pass appropriate orders on the application dated 5.3.2011 presented by the applicant.
The facts of the case are that the applicant Smt. Geeta is the complainant in complaint case no. 2847/9 of 2010, Smt. Geeta Vs. Teja and another under sections 363, 366, 376 IPC, P.S. Hastinapur pending in the Court of A.C.J.M., Court No.5, Meerut. The complaint was filed in the year 2006 in the Court of Ist Addl. Civil Judge (J.D.) / Judicial Magistrate, Meerut with allegations of kidnapping and rape against the accused Teja and Balraj. Learned Magistrate examined the complainant under section 200 Cr.P.C. and the witnesses Ramesh Chandra and Vijay Pal under sections 202 Cr.P.C. The Magistrate, vide order dated 28.7.2006, took cognizance of the offence and summoned the accused persons to face trial under sections 363, 366, 376 IPC and the complainant was directed to take steps within a week.
Earlier this case was registered as criminal case no.281 of 2006 and presently it is registered as complaint case no. 2847 of 2010.
On 5.3.2011, an application was moved on behalf of the complainant before the Magistrate stating therein that she does not wish to proceed with the complaint and is not willing to pay the process fee and, therefore, the complaint be dismissed. This application was supported by an affidavit. This application was actually presented in Court on 11.3.2011 and the Magistrate passed an order that the application be put up on the date fixed.
The grievance of the applicant is that the complainant is the master of her case and she does not wish to proceed with the case and, therefore, the Magistrate was bound to dismiss the complaint under section 204 (4) Cr.P.C. as the complainant was not wiling to pay the process fee and, therefore, the Magistrate is bound to dismiss the criminal complaint.
Sri Trivedi admitted that the complainant has entered into a compromise with the accused persons and, therefore, the complainant has promised to get her complaint dismissed and, therefore, she has filed this application u/s 482 Cr.P.C. for the aforesaid purpose.
Sri D.R. Chaudhary, learned Government Advocate, replying to the contentions raised by Sri Trivedi, submits that the case is triable by Court of Sessions and after passing a summoning order in terms of section 204 (1) Cr.P.C., the Magistrate has no jurisdiction to dismiss the complaint under section 204 (4) Cr.P.C. on the ground of failure of the complainant to pay the process fee. He contends that in a case exclusively triable by the Court of Sessions, the complainant is not required to pay any process fee and the process fee in accordance with Rule 17 of the General Rules (Criminal) is required to be paid only in cases where cognizance has been taken in the offences, which are non-cognizable.
Section 204 Cr.P.C. provides as follows :
Section 204 Cr.P.C. Issue of process. ? (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be ?
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(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.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
Rule 17 of the General Rules (Criminal) is as follows :
"17. Process Fee. ? The Fees hereinafter mentioned shall be chargeable for serving and executing processes issued by criminal courts in the case of offences other than the offences for which police officers may arrest without a warrant.................."
Rule 17 makes it clear that process fee is to be paid by a complainant for serving and executing the processes issued by the Magistrate only in cases where police officers may not arrest a person without a warrant. Rule 17 does not apply to the cases where the police officers may arrest without a warrant. The instant case is under sections 363, 366, 376 IPC and in such a case, a police officer has power to arrest the accused without warrant and, therefore, in the instant case, Rule 17 of the General Rules (Criminal) is not applicable and the applicant (complainant) is not required to pay any process fee.
A criminal complaint can be dismissed under section 204 (4) Cr.P.C. only if a process fee is payable by the complainant and is not paid within a reasonable time. Since in a case exclusively triable by the Court of Sessions, no process fee is payable by the complainant, section 204 (4) Cr.P.C. has no application in the instant case and the complaint cannot be dismissed at the instance of the complainant under section 204 (4) Cr.P.C. simply on the ground that the complainant does not wish to pay the process fee.
Offences under sections 363, 366, 376 IPC are serious and heinous offences. Trial of such a case is not dependent on the mercy or fancy of the complainant. The complainant, in such a case, cannot be permitted to say that she does not wish to proceed with the trial and the complaint be dismissed. A heinous offence is an offence against society. Once cognizance has been taken in a case exclusively triable by the Court of Sessions on the basis of a complaint and the summoning order has been passed, the Magistrate has no option, but to comply with the provisions of section 208 Cr.P.C. and to commit the case to the Court of Sessions under section 209 Cr.P.C.
In view of the aforesaid, the prayer made by applicant for dismissal of her complaint under section 204 (4) Cr.P.C. cannot be accepted.
The Application u/s 482 Cr.P.C. is misconceived and is accordingly dismissed.
Order Date :- 13.9.2011 ss