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 Cri. 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.
4. In Emperor v. Mg. San Nyein 93 I.0. 79 : A.I.R. 1926 Hang. 13: 27 Or. L. 416 it was held that neither the complainant nor the accused can be compelled to pay process-fees for the production of witnesses in non. cognizable warrant cases, although the complainant must in the ordinary course of events pay process-fees for the summoning of the accused Under Section 204, Criminal P.C. This decision was, however, overruled by a Pull Bench in Emperor v. Tha Shwe 4 Bang. 146 : A.I.R. 1926 Bang. 164 : 27 Cri. LJ 1396 in which the view taken was that in a non-cognizable warrant case the Court is not bound to summon witnesses for the prosecution or the defence under the provisions of S3. 262 and 257, Criminal P.C. if the party at whose instance or in whose interest the process is issued does not pay process-fees as required by Br, 17 and 18 of the Process Fees Rules made under the Burma Court fees Act, 1910. In Mt, Ram Dulari v. Mushtaq Ahmad a Division Bench held that in a private prosecution the complainant is under legal obligation to pay process-fees before summonses are issued to witnesses; and that the payment in respect of diet-money and travelling expenses fall under the head of 'other fees payable' mentioned in Section 204 (3), Criminal P, C, and the Court has a perfect right to insist upon those fees being paid in advance before the processes are issued. The learned Judges also opined that in private prosecutions the general rule is that the complainant must pay the reasonable expenses of the witnesses, although it is open to the local Government to make rules which would permit, in certain cases, the liability to be transferred to the Crown,
5. I am in respectful agreement with the views expressed in these cases and the learned Government Pleader was also of the opinion that it was open to the trial Court to dismiss the complaint Under Section 204 (3), Criminal P.C. The aforesaid observation of Pollock J. in Grown v. Ntrpatstngh 1939 N. L. J. 201 was, it appears, by way of obiter and the decision in Birdhi chand v. Lakhmichand a N. h. E. 65 : 3 Cri. L.J. 554 related to the payment of expenses incurred by prosecution witnesses.
6. The order of the Additional Sessions Judge is accordingly sat aside and that of the trial Court is restored. This will not occasion any great hardship to the non-applicant, as an order Under Section 204 (3) does not amount to an acquittal and he is not debarred from filing a fresh complaint.