# Smt. Geeta v. State of U.P

- **Citation:** (2011) 3 ILRA 1209
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-13
- **Case number:** Criminal Misc. Application No. 19614 of 2011
- **Bench:** S.C. Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-v-state-of-u-p-42067
- **Pages:** 4

## Headnote

Code of Criminal Procedure- Section 48application
seeking
direction
for
disposal-application
moved
under
section
204
(4)
for
dismissal
of
complaint on basis of compromise-apart
from failure of complainant to deposit
process fee-offence under Section 363,
366, 376 IPC-triable by Session CourtMagistrate has no option except to
comply the provision of Section 208
committing the case under Section 209
to the session Court-offence where the
Police can arrest without warrant no
steps required by the complainant under
rule 17 of general rule (Criminal)-no
order to pass appropriate order on such
application-can be issued.

Held: Para 12

Offences under sections 363, 366, 376
IPC are serious and heinous offences.
Trial of such a case is not dependent on
the mercy or fancy of the complainant.
The complainant, in such a case, cannot
be permitted to say that she does not
wish to proceed with the trial and the
complaint
be
dismissed.
A
heinous
1210 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
offence is an offence against society.
Once cognizance has been taken in a
case exclusively triable by the Court of
Sessions on the basis of a complaint and
the summoning order has been passed,
the Magistrate has no option, but to
comply with the provisions of section
208 Cr.P.C. and to commit the case to
the Court of Sessions under section 209
Cr.P.C.

## Text

3 All] Smt. Geeta V. State of U.P.
1209

11. We are living in free India and
are governed by the Constitution of India.
We are not living in those primitive days
where the head of the family used to rule
the
roost
and
the
marriages
were
performed according to his will. The Apex
Court in the case of B. Velusamy (supra)
has also taken note of the changed society
and has observed in paragraphs 34 and 35
of the judgment thus:-

" 34. In feudal society sexual
relationship between man and woman
outside marriage was totally taboo and
regarded with disgust and horror, as
depicted in Leo Tolstoy's novel Anna
Karenina,
Gustave
Flaubert's
novel
Madame Bovary and the novels of the
great Bengali writer Sharat Chandra
Chattopadhyaya.

35. However, Indian society is
changing, and this change has been
reflected and recognized by Parliament by
enacting the Protection of Women from
Domestic Violence Act, 2005.

Reference in this regard may also be
had to the love happened between Anar
Kali and Salim in Mugal era. We observe
with happiness that society has changed a
lot since those days.

12. In the facts and circumstances of
this case and for all the reasons stated
above, this petition is disposed of with
directions to the respondent authorities not
to take any coercive action against the
petitioners
Smt.
Sonam
Pandey,
Raghvendra Mishra, Vishnu Kant Mishra,
Smt. Urmila Devi, Puneet Awasthi, Swati
Awasthi, Atul Mishra, Manisha Mishra
and Akash Verma or arrest them till
submission of report under Section 173
Cr.P.C. in case crime no. 689 of 2011,
under Sections 363 and 366 IPC, P.S.
Govind Nagar District Kanpur Nagar.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2011

BEFORE
THE HON'BLE S.C. AGARWAL,J.

Criminal Misc. Application No. 19614 of 2011
(U/S 482 CR.P.C)

Smt. Geeta

 ...Applicant
Versus
State of U.P.

 ...Opposite Party

Counsel for the Applicant:
Sri Anoop Trivedi

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure- Section 48application
seeking
direction
for
disposal-application
moved
under
section
204
(4)
for
dismissal
of
complaint on basis of compromise-apart
from failure of complainant to deposit
process fee-offence under Section 363,
366, 376 IPC-triable by Session CourtMagistrate has no option except to
comply the provision of Section 208
committing the case under Section 209
to the session Court-offence where the
Police can arrest without warrant no
steps required by the complainant under
rule 17 of general rule (Criminal)-no
order to pass appropriate order on such
application-can be issued.

Held: Para 12

Offences under sections 363, 366, 376
IPC are serious and heinous offences.
Trial of such a case is not dependent on
the mercy or fancy of the complainant.
The complainant, in such a case, cannot
be permitted to say that she does not
wish to proceed with the trial and the
complaint
be
dismissed.
A
heinous
1210 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
offence is an offence against society.
Once cognizance has been taken in a
case exclusively triable by the Court of
Sessions on the basis of a complaint and
the summoning order has been passed,
the Magistrate has no option, but to
comply with the provisions of section
208 Cr.P.C. and to commit the case to
the Court of Sessions under section 209
Cr.P.C.

(Delivered by Hon'ble S.C. Agarwal, J. )

1. Heard Sri Anoop Trivedi, learned
counsel for the applicant and Sri D.R.
Chaudhary,
learned
Government
Advocate on behalf of the State of U.P.

2. This Application u/s 482 Cr.P.C.
has been filed with a prayer to quash the
order
dated
11.3.2011
passed
by
A.C.J.M., Court No.5, Meerut and to
further direct him to pass appropriate
orders on the application dated 5.3.2011
presented by the applicant.

3. The facts of the case are that the
applicant Smt. Geeta is the complainant in
complaint case no. 2847/9 of 2010, Smt.
Geeta Vs. Teja and another under sections
363, 366, 376 IPC, P.S. Hastinapur
pending in the Court of A.C.J.M., Court
No.5, Meerut. The complaint was filed in
the year 2006 in the Court of Ist Addl.
Civil Judge (J.D.) / Judicial Magistrate,
Meerut with allegations of kidnapping
and rape against the accused Teja and
Balraj. Learned Magistrate examined the
complainant under section 200 Cr.P.C.
and the witnesses Ramesh Chandra and
Vijay Pal under sections 202 Cr.P.C. The
Magistrate, vide order dated 28.7.2006,
took cognizance of the offence and
summoned the accused persons to face
trial under sections 363, 366, 376 IPC and
the complainant was directed to take steps
within a week.

4. Earlier this case was registered as
criminal case no.281 of 2006 and
presently it is registered as complaint case
no. 2847 of 2010.

5. On 5.3.2011, an application was
moved on behalf of the complainant
before the Magistrate stating therein that
she does not wish to proceed with the
complaint and is not willing to pay the
process fee and, therefore, the complaint
be dismissed. This application was
supported by an affidavit. This application
was actually presented in Court on
11.3.2011 and the Magistrate passed an
order that the application be put up on the
date fixed.

6. The grievance of the applicant is
that the complainant is the master of her
case and she does not wish to proceed
with
the
case
and,
therefore,
the
Magistrate was bound to dismiss the
complaint under section 204 (4) Cr.P.C.
as the complainant was not wiling to pay
the process fee and, therefore, the
Magistrate is bound to dismiss the
criminal complaint.

7. Sri Trivedi admitted that the
complainant
has
entered
into
a
compromise with the accused persons
and, therefore, the complainant has
promised to get her complaint dismissed
and,
therefore,
she
has
filed
this
application u/s 482 Cr.P.C. for the
aforesaid purpose.

8. Sri D.R. Chaudhary, learned
Government Advocate, replying to the
contentions raised by Sri Trivedi, submits
that the case is triable by Court of
Sessions and after passing a summoning
order in terms of section 204 (1) Cr.P.C.,
the Magistrate has no jurisdiction to
3 All] Smt. Geeta V. State of U.P.
1211
dismiss the complaint under section 204
(4) Cr.P.C. on the ground of failure of the
complainant to pay the process fee. He
contends that in a case exclusively triable
by the Court of Sessions, the complainant
is not required to pay any process fee and
the process fee in accordance with Rule
17 of the General Rules (Criminal) is
required to be paid only in cases where
cognizance has been taken in the
offences, which are non-cognizable.

9. Section 204 Cr.P.C. provides as
follows :

Section 204 Cr.P.C. 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 subsection (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 subsection (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.

Rule 17 of the General Rules
(Criminal) is as follows :

"17. Process Fee. - The Fees
hereinafter mentioned shall be chargeable
for serving and executing processes
issued by criminal courts in the case of
offences other than the offences for which
police officers may arrest without a
warrant.................."

10. Rule 17 makes it clear that
process fee is to be paid by a complainant
for serving and executing the processes
issued by the Magistrate only in cases
where police officers may not arrest a
person without a warrant. Rule 17 does
not apply to the cases where the police
officers may arrest without a warrant. The
instant case is under sections 363, 366,
376 IPC and in such a case, a police
officer has power to arrest the accused
without warrant and, therefore, in the
instant case, Rule 17 of the General Rules
(Criminal) is not applicable and the
applicant (complainant) is not required to
pay any process fee.

11. A criminal complaint can be
dismissed under section 204 (4) Cr.P.C.
only if a process fee is payable by the
complainant and is not paid within a
reasonable
time.
Since
in
a
case
1212 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
exclusively triable by the Court of
Sessions, no process fee is payable by the
complainant, section 204 (4) Cr.P.C. has
no application in the instant case and the
complaint cannot be dismissed at the
instance of the complainant under section
204 (4) Cr.P.C. simply on the ground that
the complainant does not wish to pay the
process fee.

12. Offences under sections 363,
366, 376 IPC are serious and heinous
offences. Trial of such a case is not
dependent on the mercy or fancy of the
complainant. The complainant, in such a
case, cannot be permitted to say that she
does not wish to proceed with the trial and
the complaint be dismissed. A heinous
offence is an offence against society.
Once cognizance has been taken in a case
exclusively triable by the Court of
Sessions on the basis of a complaint and
the summoning order has been passed, the
Magistrate has no option, but to comply
with the provisions of section 208 Cr.P.C.
and to commit the case to the Court of
Sessions under section 209 Cr.P.C.

13. In view of the aforesaid, the
prayer made by applicant for dismissal of
her complaint under section 204 (4)
Cr.P.C. cannot be accepted.

14. The Application u/s 482 Cr.P.C.
is misconceived and is accordingly
dismissed.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 23766 of 2010

Mukesh

...Applicant
versus
State of U.P.

 ...Opposite Party

Counsel for the Petitioner:
Sri Rajiv Gupta
Sri Dileep Kumar

Counsel for the Respondents:
Sri B.A. Khan
A.G.A.

Code of Criminal Procedure-Section 439Bail application Offence under section
302-named-from FIR stage-deceased 18
years young boy-sustained 10 antemorem injuries-at 9 P.M. The applicant
and other co-accused taken deceased for
threshening of wheat crops-but on spot
neither the crop nor its straw found-nor
blood found even on injury of crushingconsidering gravity of case-not entitled
for bail.

Held: Para 7

Considering the facts, circumstances of
the case, submission made by learned
counsel
for
the
applicant,
learned
A.G.A.and from the perusal of the record
it appears that the name of the applicant
has been disclosed by the first informant
at the inquiry stage, the allegation
against the applicant and co-accused
Subhash is that the deceased was called
by them from his house in the night of
16.4.2010 at about 7-8 P.M.for the
tractor threshing and in the morning the
dead body of the deceased was found
embedded in the thresher, neither in the
thresher nor near the thresher the wheat
crop and its straw was found, the