1. The petitioner brought a summons case and after the appearance of the accused he was given three days time to pay witness batta in order that his. Witness, might be summoned. As the batta was not paid, the Magistrate dismissed the complaint, purporting to act under Section 201(3), Criminal Procedure Code.
2. It is contended here that Section 204(3) does not apply to non-payment of witness batta, and In the matter of Korapalu v. Monappa 5 M 160 : 2 Weir 205 has been cited to that effect. That was a case under the old Code when there was no section corresponding to Section 204(3) of the present Code. The Magistrate purported to dismiss the complaint under Section 20) of that Code, which resembles Section 247 of the present Cede. Section 247 provides for the acquittal of the accused in cases of non-appearance of the complainant. It was held in that case that Section 205 did not apply. There seems to be no reason to think that the power given to the Magistrate under Section 201(3) does not apply to non-payment of witness batta. This sub-section gives the Magistrate power to dismiss the complaint when the complainant fails to pay any process fees or other fees. The section is, therefore, quite wide enough to include non-payment of witness batta. My attention has been; drawn to the judgment of Burn, J. reported in Amirthathamwal v. Ratnaswami Padayachi (1933) M.W.N. 1266 There, in a warrant case, after the charge had been framed, the attendance of the witnesses for the complainant was necessary in order that they might be further cross examined. It was held that in such a case the complainant should not be compelled to pay process fees. It followed that if he was not bound to pay process fees, the complaint should not be dismissed for non-payment of those fees. Clearly that case has no application to the present case which is a simple summons case where process, fees were payable at the very commencement of the proceedings. The learned discussion of Burn, J. in that case would have been unnecessary if the petition could have been dismissed on the simple ground alleged in this petition.
3. I therefore find that the order of the Magistrate was correct and accordingly order that this petition be dismissed.