P.D. Rajan, J. - The short question that arises in this Revision Petition is whether a complaint can be dismissed under Section 204(4) of the Code of Criminal Procedure (hereinafter referred to as the Code) on the ground of non payment of batta for execution of warrant

This Revision Petition is directed against the order in C.C. 2798 of 2002 of the Judicial First Class Magistrate-I, Aluva dismissing the complaint under Section 204(4) of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.). Revision petitioner filed the above case against the accused for offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I.Act). The complainants case is that accused borrowed a sum of Rs. 75,000/- and in discharge of that debt, he issued a cheque. When the cheque was presented for encashment, it was dishonoured for want of sufficient funds. He demanded the amount by giving a notice in writing, but there was no payment hence he filed a complaint in the above court. The sworn statement was taken and summons was ordered. Since the accused is residing outside the jurisdiction of the trial court, a warrant was issued. But the complainant failed to take steps, hence the complaint was dismissed under Section 204(4) of the Code. Being aggrieved by that, he approached this court with this Revision Petition.

2. The main contention of the revision petitioner is that accused is residing outside the territorial jurisdiction of the court. Even after summons and warrant accused did not appear before court. On 20.9.2006, warrant was issued against the accused and it was handed over to the revision petitioner but he was laid up due to fever and could not remit batta for executing the warrant. The case was posted on 7.10.2006 and filed an application to issue fresh warrant, but on that day the complaint was dismissed.

3. Section 204 of the Code relates to issue of process for the attendance of the accused. It reads as follows:

" 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".

4. The contention put forward by the Public Prosecutor is that as per the direction of the court process fee was not remitted in the trial court. When any law directs to pay process fee and no process has been remitted within a reasonable time the dismissal of the complaint is right. When warrant issued was not executed there is no reason to interfere and Magistrate had no other alternative.

5. When court issues process it means that the court has taken cognizance of the offence and has decided to initiate proceedings against accused. A reading of Section 204 of the Code, it is found that if the Magistrate is of the opinion to take cognizance of an offence alleged in the complaint, he may issue summons for the appearance of the accused or either issue warrant or summons in a warrant case. To procure the presence of the accused during trial is the first responsibility of the court that is either by issuing a summons or by the arrest and detention. For preferring one method a decision has to be taken by a court applying its judicial discretion controlled by the provisions of the Code. While dismissing a complaint under Section 203 of the Code, the Magistrate shall briefly record his reasons to do so, but issue of process under Section 204 of the Code does not require Magistrate to record a speaking order. It would be sufficient that the Magistrate has applied his mind to the facts of the case and has formed any opinion that there is sufficient ground for proceeding with the case and for issuing process. According to Section 204(4) of the Code, when by any law in force any process fee or other fees are payable no process shall be issued until such fees are paid. At the same time, if such fee are not paid in a reasonable time, the Magistrate may dismiss the complaint. Unless the Magistrate takes cognizance as specified under Section 190 of the Code a person cannot be sued under this section.

6. All criminal cases are classified in the Code into summons case and warrant cases. A warrant case and summons case have been defined in clauses (x) and (w) of Section 2 of the Code. A "warrant case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years, and a summons case means a case relating to an offence, and not being a warrant case. Normally warrant case relates to a serious offence while a summons case relates to a comparatively less serious crime, the trial-procedure prescribed for a warrant case is different than summons case. In the above context, now the question under challenge is for issuance of warrant in a private complaint, whether process fee has to be paid by the complainant.

7. In the instant case, warrant was issued against the accused but process fee was not remitted. Now the question is whether process fee has to be paid for issuing warrant in a private complaint. Chapter XXVIII of the Criminal Rules of Practice Kerala 1982 (hereinafter referred to as the rules) prescribes about scale of process fees. According to Rule 273, process fee shall be leviable at the rates prescribed from time to time under the Kerala Court Fees and Suits Valuation Act, 1959 (10 of 1960). Rule 274 is about Batta memo. Parties applying for the issue of process shall file a batta memo containing the name, residence and full address etc., of the person on whom the process is to be served together with the fees for such service and the batta if any prescribed. The Kerala Court Fees and Suits Valuation Act 1959, Section 83 empowers High Court to make rules to regulate fees payable for serving and executing process issued by the High Court in its appellate jurisdiction and Civil and Criminal Courts subordinate thereto. Accordingly, the table of process fees payable for executing process by High Court and Subordinate Civil and Criminal Courts are published in the Kerala Gazette K.G. Ex.No.23 dated 1.2.1962 which was periodically modified on several times. Table of process fees chargeable for serving and executing process issued by any criminal court in the case of offences for which police officers may arrest without a warrant are also notified. Therefore the contention that the revision petitioner need not pay process fee for issuance of warrant in private complaint is unsustainable in law. However under Criminal Rules of Practise there is no discrimination for payment of process fee in summons case and warrant case. Therefore the complainant has to pay the required amount of process fee according to the rules of Criminal Rules of Practice Kerala 1982 has to be followed.

8. A similar question was decided by the High Court of Madras in Rajaram v. Sundram (1995 Mad.L.J. (Crl.) 549) and held as follows:-

"The learned counsel for the petitioner would submit that in view of the decision in Baburam v. State of U.P. (1978 Crl.L.J. 1430 : 1978 All. L.J. 251 (referred supra) for the warrant cases, the process fee need not be paid by the complainant. That is a decision of the Uttar Pradesh High Court following the rules framed by the Uttar Pradesh Government. But so far as the Tamil Nadu is concerned, the Criminal Rules of Practice framed by the Government of Tamil Nadu has to be followed and under Rule 111 of Criminal Rules of Practice, the private complaint shall be presented to the Magistrate by a party in person or by his pleader and under Rule 119, as soon as orders to issue process have been passed upon a complaint, the complainant shall pay the amount of process in court-fee stamps for the issue of process to the accused. Under the Criminal Rules of Practice which is in force in Tamil Nadu, there is no discrimination, between the summons case and warrant case, for the payment of process fee. Therefore, it cannot be contended that for the warrant cases, the complainant need not pay the process fee".

9. In certain occasion, in summons case a Magistrate is required to issue to summons, in a warrant case he has discretion to issue either a warrant or a summons. Even in a summons case, he may issue a warrant after recording his special reasons for doing so under Section 87. Section 87 reads as under:-

" 87. Issue of warrant in lieu of, or in addition to summons - A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest -

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure".

10. It is not legal to issue a warrant of arrest against the accused without issuing proper summons against the accused. A duty is cast upon the court to issue process to the accused under the Code. A bare reading of the above section shows that it is mandatory for the court to record reasons in writing while issuing notice for appearance of the accused through warrant of arrest. Before that the Magistrate should ensure that the said person has absconded or he will not obey the summons. Another circumstance is that in spite of due service of summons upon him, he failed to appear before court. Here such reasons are not recorded by the Magistrate before issuing coercive process of warrant also.

11. Delhi High Court in G. Sagar Suri v. State & Anr. (2004 Crl.L.J. 212) held that "coercive process of warrant of arrest cannot be resorted to without recording reasons in writing. In a summons case unless the Magistrate receives the report regarding service of summons on accused, he would not be justified in issuing warrant of arrest against accused".

12. When for reasons stated under Section 87 of the Code, the Court finds it necessary to issue a warrant, the warrant so issued would be in force unless it is cancelled by the court which issued it or until it is executed. The revision petitioner had explained how he happened to be absent on 07.10.2006. The learned Magistrate observed that neither the warrant nor proclamation could be executed. The application filed on 7.10.2006 shows that warrant was obtained on 20.9.2006 and he could not execute the warrant because revision petitioner was laid up. Therefore the court could not dismiss the complaint under Section 204(4) when the warrant is in force. The allegation constitutes a prima facie case against the accused and there is no justification in dismissing the complaint after issuing warrant to the accused. If the complainant fails to pay the process fee on the next adjourned date, that is a good ground for dismissal under Section 204(4) of the Code. The revision petitioner contended that he was earnestly prosecuting the matter in the Trial Court. But on the date fixed by the court, he was laid up and could not execute the warrant as directed by the Trial Court. In the light of the explanation, interest of justice warrant that he should be given an opportunity to proceed with complaint.

13. In the result, the Revision Petition is allowed and the matter is remanded to the Trial Court for fresh consideration. The Judicial First Class Magistrate-I, Aluva will take the complaint to the file and dispose it of according to law.