- (1.)THE non-applicant Tulsiram's com-plaint against the applicants, Vithi and Kashiram was registered under a. 494, Penal Code, by the First Glass Magistrate, Bhandara, on 9th January 1948 when summonses were ordered to be issued to them. They appeared in due course on 11th May 1948 and the Magistrate ordered the non-applicant to summon his witnesses on payment of process-fees for the hearing on 6th July 1948. Prior to that date, however, he did not pay the fees and the complaint was dismissed. Under Section 204 (3), Criminal P. C. In revision, however, this order was set aside by the Additional Sessions Judge, Bhandara, and the applicants have now come up to this Court
(2.)RULE 546 of the Rules and Order (Criminal) contains rules made Under Section 20 (ii), Court-fees Act and the first of them prescribes fees chargeable for serving and executing processes issued by criminal Courts in the case of offences other than offences for which police officer may arrest without a warrant. As an offence Under Section 494, Penal Code, is not cognizable, it would follow from this rule that the payment by the non-applicant of process-fees for the issue of summonses to witnesses was essential.
(3.)THE learned Additional Sessions Judge pointed out, however, that in the first place the dismissal of the complaint Under Section 204 (3), Criminal P. C. was erroneous, as Pollock J. had observed in Grown v. Nirpatsmgh 1939 N. L. J. 201 that that Sub-section appears to apply only to the issue of process to the accused at the first instance. The present case is a warrant case and in Birdhichand v. Lakhmichand 8 N. L. B. 65 : 18 Cr. L. J. 651, it was pointed out that there is nothing in chap, six (which deals with the trial of warrant cases) of the Code of Criminal Procedure which enables the Magistrate to demand even from a complainant the expenses to be incurred by his witnesses, though such a power is conferred by Section 244 (8) where the case tinder trial is a summons case.