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Case Name

Mt. Vithi and Ors. Vs Tulsiram Maroti and Crown

 Equivalent Citation


Date of Judgment

4th November, 1949


High Court of Nagpur

Case Type

Criminal Appeal


Vithi and Ors.


Tulsiram Maroti and Crown


Single judge Bench of Justice Hemeon

Section 204(3) of Cr.P.C,1898Section 244 of Cr.P.C, 1898Section 20(ii)of Court Fees Act, 1870


  • The Complaint which was filed by the non-applicant Tulsiram against the applicants, Vithi and Kashiram was duly recorded under Section 494 of Penal Code by the First Class magistrate, Bhandara on 9th January, 1948, also the magistrate ordered to  issue the summons to them on the same date.
  • As per Summons order, the parties appeared on 11th May, 1948, also the Magistrate ordered for the payment of  process-fees for issuing summons to his witnesses to the non-applicant for hearing that will occur on 

6th July,1948.

  • But, before the hearing date the non-applicant did not pay the process fees for summoning his witnesses as a result the complaint was being dismissed according to Section 204(3) Cr.P.C, 1898. In the revision of this petition, the additional Sessions Judge, Bhandara did not consider the above summoning order process fees payment issue and set the order aside.
  • Dissatisfied by the decision of the Additional Sessions Judge, the applicant approached the High Court of Nagpur (at present Bombay).


  • Whether the court can collect the process fees for issuing of summons to witness for hearing from the non-applicant or the party for whom the witnesses are in favour of in case of non-cognizable offence?
  • What is the rule for collecting processing fees for issuing summons for witnesses in summons cases?
  • What is the status of the petition if the party on whose behalf the witnesses are being summoned does not pay the processing fee before the due date?


  • The Appellant contended that as per Section 204(3) of Cr.P.C, 1898, the magistrate has the power to discharge the case, if one of the party who is responsible to pay the process-fees or any other payable fees as required by any law which is enforceable for the time being, so in the present case as the non-applicant has not paid the process fees for summoning his witnesses before due date, the magistrate has to dismiss his case.
  • The appellant argued that the criminal court even derives it power to prescribe chargeable fees for its actions of serving and executing processes in non-cognizable offences or warrant cases according to Section 20(ii) of Court Fees Act, 1870, so the court can charge fees on the non-applicant for its act of summoning his witnesses which was necessary.


  • The Respondent argued that dismissal of the Case under Section204(3) of Cr.P.C, 1898 is wrong as noted by Pollock J. in Grown V Nirpat singh that this subsection 3 of section 204 of Cr.P.C is only applicable for issuing process to the accused at the first instance.
  • The Respondent also contended that in Birdhichand V Laxmikanth, it was observed that no provision in Chapter of Cr.P.C containing trial for warrant cases, which allows the magistrate to collect the expenses sustained by the witnesses from the complainant for, even though such power is laid down in Section 244 of Cr.P.C for trial of summons case.


The High Court while giving its judgment referred decision of Emperoe V Mg. San Nyein, where it was laid down that both the parties, claimant and accused cannot be forced for payment of processing fees by the court for the witnesses production in warrant cases which are not cognizable. The court also observed that the above judgment was invalidated by a Full bench in Emperor V Tha Shwe, where it was viewed that in non-cognizable warrant case, the court is not under compulsion to summon prosecution or defence witnesses under the provisions of 262 and 257 sections of Cr.P.C . If the court issued summons , then the party for whose sake or in favour the process is being issued should pay the process fees as required by Rules 17 & 18 of the Process fees Rules made under the Burma Court Fees Act, 1910.

The High Court in its judgment cited the decision of Mt. Ram Dulari V Mushtaq Ahmed, where a Division Bench ruled that in case of Private prosecution, the complainant is bound by law or has legal duty for payment of process fees prior to issuing summons to the witnesses, also the payment in reference to diet-money and travelling expenses comes under the heading of “other fees payable” as laid down in Section 204(3)Cr.P.C, further the Court has absolute right to claim those fees payment in advance prior to issuing the processes. The judges in this case observed the general principle that in private prosecutions, it is the complainant who must pay the reasonable expenses of the witnesses, even though it  is in the discretion of local Govt. to make rules permitting it, in some cases, the liability is passed down to the Crown.

The High Court as a response to respondent’s contentions said that in Grown V Nirpat Singh, the judgment was more of obiter dicta and also the judgment in Birdhichand V Laxmichand the decision was regarding prosecution witnesses expenses payment.

Finally, the court set aside Additional Sessions Judge by saying that its decision of supporting trial court of dismissing complaint for non payment of summoning witness processing fees by non applicant does not cause any kind of difficulty to the non-applicant, as an order under Section 204(3) does not itself mean an acquittal and he is not being forbidden from filing a fresh complaint.


SECTION 204(3) OF Cr.P.C, 1898 says that when any law for the time being in force any process-fees or other fees are paid, and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.

In the present case, the section is applicable as the non-applicant did not pay the process fees before the hearing date that is within reasonable time, so the trial court dismissed the complaint.

SECTION 244 OF Cr.P.C, 1898 says that the Magistrate in his discretion thinks that the case is fit, on the application of the complainant or accused, shall issue a process to mandate any witness attendance or any document or other thing production. 

SECTION20(ii) OF COURT FEES ACT, 1870 talks about the charging fees for serving and executing processes issued by the Criminal Courts in case of warrant cases or non-cognisable offences.


The case was of significance as it laid down the rule to deal with non-payment of process fees for issuing summons to witnesses by one of the parties to the case and also about the applicability of Section 204(3) Cr.P.C, 1898 and its legal implications. Eventhough the Cr.P.C, 1898 is being repealed, the same provision of the said section is still relevant in the present Cr.P.C also. The principle is that in Private prosecution the payment of processing fees is on the party at whose instance the court issued summons to witnesses either it be complainant or accused. Finally, even if the petition is being dismissed by Sec204(3) of Cr.P.C, the party still has his right to settle the dispute in court by filing fresh complaint.

written by yyapa Reddy Gari Bhavana, Damodaram Sanjivayya National Law University


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