In CRL.MC NO. 4842 OF 2021-KER HC- Non-compliance regarding noting court fee payable in petition filed before criminal Court is serious matter, says Kerala HC while directing all subordinate Courts to comply with Rules 28 & 29 of Kerala Criminal Rules of Practice
Justice A. Badharudeen [30-09-2022]

Read Order: C.P. PAPPACHAN vs. STATE OF KERALA

Mansimran Kaur

Ernakulam, October 6, 2022: While reiterating that the fault committed by the Court shall not stand in the way of non-suiting the aggrieved party, the Kerala High Court has directed all the subordinate Courts to comply with Rules 28 and 29 of the Kerala Criminal Rules of Practice in strict sense without fail.

Asking the Registry to forward a copy of the order to all criminal courts with a direction to comply with the order, the Single-Judge Bench of Justice A. Badharudeen, dismissed the instant petition by observing that none of the contentions raised by the petitioner were liable to be sustained and were completely baseless. 

The instant criminal miscellaneous case was instituted under Section 482 of CrPC to set aside the order condoning delay in filing complaint of the complainant, on the allegation that the delay was condoned without filing a petition to condone the delay, without sufficient cause and without notice to the accused. Further it was prayed that all proceedings stemming from the complaint on the files of Judicial First Class Magistrate Court-III, Muvattupuzha, be quashed on the said ground

The petitioner was the sole accused in the Criminal case pending before the Judicial First Class Magistrate Court-III. 

After hearing the rival contentions of the parties, the Court noted that it was the case of the petitioner  that though there was a delay of 103 days in filing the complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act, the complaint was filed without delay petition and the court below took cognizance without condoning the delay and the order passed in a subsequently inserted petition, as such the same was  unsustainable and the same required  interference.

It was further submitted that though in the order, the delay of 103 days was condoned, however no such petition was filed and no court fee also was paid. Hence, the entire cognizance was wrong and the criminal proceedings as such were liable to be quashed. 

In view of the same, the Bench noted that the above stated legal position was not in dispute. 

However, the pertinent question arising for consideration was whether the omission to affix seal in the complaint or the delay petition or any other proceedings and the mere omission to show the court fee paid in a petition in the concerned register by itself would a ground to hold that the delay petition numbered as CMP.No.575/2019 was a subsequently inserted one.

In view of the same, the Court opined that that even though there was omission to comply with the rules in the matter of affixing the seal, etc., the copy of register of Criminal Miscellaneous Petitions made  it clear that the complaint and the delay petitions were filed on April 17, 2019  and the Magistrate ordered notice in CMP.No.575/2019. 

When answering to the question as to illegality attached to the order condoning delay in filing complaint, it was crystal clear that notice was ordered by the Magistrate in CMP.No.575/2019 filed by the complainant on the date of filing and on receipt of notice, the petitioner herein did not appear before the court and consequently acting on the averments in the affidavit, the delay petition was allowed and finally the delay condoned. It was thereafter that cognizance was taken.Therefore, the contention raised by the petitioner that no delay petition was filed by the complainant and the delay petition was subsequently manipulated etc. were  baseless allegations, the Court noted. 

It is true that as mandated under Rules 28 and 29 of the Criminal Rules of Practice, seal was not affixed not only in the delay petition but also in the complaint. Similarly, court fee paid on CMP.No.575/2019 also not shown in the register while showing remittance of court fee in CMP.No.574/2019 in the said register. No doubt, there were omissions in the matter of compliance of Rules 28 and 29 of the Kerala Criminal Rules of Practice, the Court noted. 

The crucial question was whether non-compliance of the above Rules by the court staff treating the same as a mistake committed by the court, is a reason to non-suit the complainant herein or any party before the court. It is the settled law that fault committed by the court shall not stand in the way of non-suiting the aggrieved party before the court. The maxim "Actus curiae neminem gravabit'' embodies the said principle. That is to say, the act of the Court shall prejudice no one. In such a situation, the Court is under an obligation to undo the wrong.

On perusal of the materials, there was nothing in this matter to hold that the delay petition-CMP.No.575/2019 was not filed on April 17, 2019 and notice also was not given to the petitioner, the Court noted. In furtherance of the same, the Court observed that none of the contentions raised by the petitioner were liable to be sustained and therefore,  order condoning delay was fully justified. 

In light of such observations, the petition was dismissed on lack of merits.