Ram Sewak Vs. Savitribai and anr. - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - thus, the presiding officer of the court may remit the process fee payable in.....orders.k. chawla, j.1. this revision is directed against revisional order of the court of session, setting aside magistrate's order rejecting the complainant's application for summoning witnesses.2. in a complaint filed by savitri bai (non-applicant no. 1 herein) against petitioner ram sewak on 21-7-1977, the magistrate framed charge under section 495, indian penal code for the offence of bigamy coupled with concealment of former marriage against the petitioner on 22-9-1980. it was only after lapse of considerable time, i.e. on 31-1-1983, that the complainant could be further cross-examined after charge. the complainant on that day examined one more witness named dayaram. her two more witnesses nathuram and tulsi were also present but they could not be examined on that day because the.....

Judgment:
ORDER

S.K. Chawla, J.

1. This revision is directed against revisional order of the Court of Session, setting aside Magistrate's order rejecting the complainant's application for summoning witnesses.

2. In a complaint filed by Savitri Bai (non-applicant No. 1 herein) against petitioner Ram Sewak on 21-7-1977, the Magistrate framed charge under Section 495, Indian Penal Code for the offence of bigamy coupled with concealment of former marriage against the petitioner on 22-9-1980. It was only after lapse of considerable time, i.e. on 31-1-1983, that the complainant could be further cross-examined after charge. The complainant on that day examined one more witness named Dayaram. Her two more witnesses Nathuram and Tulsi were also present but they could not be examined on that day because the Court's time was over. Those witnesses were directed to be bound over for the next date, i.e. for 17-3-1983. On that date those witnesses remained absent and the learned Magistrate directed that if the complainant paid process-fee, bailable warrants in the sums of Rs. 100/- each may be issued against them. The complainant did not pay the process fee. The case suffered thereafter at least eight adjournments and almost every time the Court directed that if process fee was paid by the complainant, the remaining witnesses be summoned. Ultimately, on 11-1-1985, when the complainant herself was absent and the witnesses of the complainant were also absent, the Magistrate closed the complainant's evidence and fixed the case for examination of the accused. On the date fixed for examination of the accused, i.e. on 18-1-1985, the complainant re-appeared and made an application that the accused's statement might not be recorded and that her remaining witnesses as per previous list may be summoned. This application was rejected by the learned Magistrate on 23-1-1985. The accused, i.e., the petitioner herein, was examined on that day.

3. Aggrieved by the aforesaid order dated 23-1-1985 of the learned Magistrate, the complainant filed a revision in the Court of Session, Vidisha. The Second Additional Sessions Judge, Vidisha, by order dated 4-10-1989 allowed that revision, setting aside the Magistrate's order dated 23-1-1985 and directing the Magistrate to examine the remaining witnesses of the complainant as per her list and to dispose of the case thereafter in accordance with law. Aggrieved with the revisional order dated 4-10-1989, the petitioner has now come in revision before this Court.

4. The learned Additional Sessions Judge in the impugned order dated 4-10-1989 has observed that complainant's witnesses Nathuram and Tulsi were bound over by the trial Court for appearing on the next date of hearing. Those witnesses had not subsequently appeared and it was the responsibility of the trial Court to have procured their attendance and to get them examined. It was further observed that offence under Section 495, Indian Penal Code, under which charge had been framed, was punishable with 10 years' imprisonment, besides fine. That offence was triable as a warrant case. It was wrong on the part of the trial Court to have directed the complainant, in a case relating to such a grave offence, to pay process fee for issuance of process. On these grounds the Magistrate's order dated 23-1-1985, refusing to summon complainant's remaining witnesses, was set aside.

5. There appears to be some confusion in the Courts about the law relating to process fees. It is under rules framed by the High Court under Section 20 of the Court Fees Act that process fee is payable. These rules for processes to be issued by criminal Courts are reproduced in Rules 546 to 549 of Rules and Orders (Criminal). At the outset, it may be noticed that process fee is always payable in Court fee stamps and never in cash (Rule 547). Speaking about criminal cases, it is only in non-cognizable cases that process fee is payable (Rule 546). With respect to cognizable cases, process fee is not payable, whether the case was instituted on complaint or not (Rule 548). Thus, 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, as the learned Additional Sessions Judge in the present case seemed to wrongly think. It does not also depend upon the quantum of punishment prescribed for the offence, as again the learned Additional Sessions Judge wrongly seemed to think. 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 rule admits of no exception. It does not then matter whether the cognizable case was instituted on a complaint or not. On the other hand, if the case is non-cognizable cases, then, speaking generally, process fee is payable for processes to be issued in that case (See Rule 546). This is to repeat, the general rule; but it admits of exceptions. Those exceptions may also be noticed. Thus, the Presiding Officer of the Court may remit the process fee payable in non-cognizable case, when he is satisfied that person applying for the issue of process is unable to pay the process fee and in that situation process fee would not be payable. (See Rule 546(4)). Secondly, when witnesses before charge are recalled for further cross-examination after charge, process fee is not payable for any process to compel the appearance of such witnesses. (See Rule 546(3)). Thirdly, no process fee is payable for any process issued upon the complaint or application of any public officer acting as such public officer, or of any Railway servant acting as such Railway servant. But process fee is payable in cases instituted on complaint by a police officer authorised under the Municipalities Act, or rules or byelaws made thereunder. (See Rule 546(2)). This is briefly the law relating to process fees in criminal cases.

6. Coming to the present case, the Magistrate framed charge against the accused only under Section 495, Indian Penal Code. Although this offence is punishable with long sentence of imprisonment, a reference to the First Schedule of Code of Criminal Procedure, 1973, to Column No. 4 thereof against the above section, shows that it is a non-cognizable offence, i.e., an offence for which a police officer shall not arrest without warrant. The present case was, therefore, a non-cognizable case. Process fee was, therefore, payable for processes to be issued in the case. The trial Magistrate could have remitted process fee even in such a case on the ground that the complainant was unable to pay the fees. Such a remission was not done. On the other hand, the trial Court on every date of adjournment directed the complainant to pay process fee. The complainant was, therefore, bound to pay the process fee. The complainant was bound to pay such process fee not only for summons to be issued but also for bailable warrants with respect to absent bound-over witnesses. The complainant every time, totalling as many as eight occasions, defaulted in payment of process fee for procuring the attendance of remaining witnesses, including two bound-over witnesses aforementioned. In the circumstances, the learned Magistrate was justified in closing the evidence of complainant after the eighth default in payment of process fee had occurred. The learned Magistrate was justified in rejecting the complainant's application dated 18-1-1985 to summon the complainant's remaining witnesses. This was a case which had been instituted in the year 1977, in which the complainant's evidence was closed only after a lapse of nearly 8 years. The case of the complainant could not have been allowed to go on ad infinitum, even after repeated defaults. The impugned order of the trial Magistrate could be said to be interlocutory order, against which no revision lay. Even otherwise, the learned Additional Sessions Judge was wrong in setting aside the trial Magistrate's impugned order, on the wrong assumption that because the case was triable as a warrant case or because the offence was punishable with heavy punishment, or because two bound-over witnesses of the complainant failed to appear, process fee was not payable. The impugned order of the Additional Sessions Judge was unjust and wrong and deserves to be set aside.

7. For the foregoing reasons, this revision is allowed. The impugned order of Additional Sessions Judge dated 4-10-1989 is set aside. The order of the trial Magistrate dated 23-1-1985 is restored. The criminal case shall further be proceeded by the trial Magistrate in accordance with law and disposed of with expedition. Both the parties through their counsel are informed to appear before the trial Court on 7-4-1993.