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Allahabad High Court · body

1955 DIGILAW 141 (ALL)

Kamla Pati Pandey v. State

1955-06-03

OAK

body1955
JUDGMENT Oak, J. - This is a reference by the learned Additional Sessions Judge of Gorakhpur. One Kamla Pati Pande filed a complaint against Chandrika Singh under Sections 379, 394 and 324, I.P.C. One Dr. Krishna Prasad Singh was examined as a prosecution witness. On 24th September, 1951 Dr. Singh made an application to the learned Magistrate that, the medical fee and travelling expenses of the witness had not been paid by the complainant. Upon this application the learned Magistrate passed the following order: Let the sum ordered to be paid by my predecessor be realized as fine. The order was passed on 29th September, 1951. Kamla Pati went up in revision before the learned Sessions Judge. The learned Additional Sessions Judge has made this reference recommending that, the learned Magistrate's order directing the realization of the money as a fine should be set aside. 2. I have heard Learned Counsel for Kamla Pati Pande and the learned Assistant Government Advocate. I am of the opinion that, the reference ought to be accepted. 3. The learned Sessions Judge has referred to the case of Kamal Mandalini Vs. Paramasukh Chakrabutty, AIR 1926 Cal 289 . In that case it was held that there is no provision in the Code of Criminal Procedure under which the Court can order payment of diet money to a witness. 4. The learned Sessions Judge has referred to Section 547, Code of Criminal Procedure. Section 547, Code of Criminal Procedure states: Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. 5. In order to get the benefit of Section 547, Code of Criminal Procedure, a claimant must show that money is payable by virtue of any order made under this Code. We have, therefore, to see whether an order for payment of the diet money and travelling expenses could be made under the Code. 6. The matter arose in the trial of a warrant case. Chapter XXI of the Code deals with the trial of warrant cases. Section 252, Code of Criminal Procedure deals with evidence for prosecution. According to Sub-section (1) of Section 252, the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. Chapter XXI of the Code deals with the trial of warrant cases. Section 252, Code of Criminal Procedure deals with evidence for prosecution. According to Sub-section (1) of Section 252, the Magistrate shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution. Sub-section (2) of Section 252, Code of Criminal Procedure states: The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons...to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary. 7. There is no mention in Section 252, Code of Criminal Procedure about expenses to be paid to witnesses. Section 244, Code of Criminal Procedure appears in Chapter XX governing the trial of summons cases. According to Sub-section (3) of Section 244, the Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court. Again Section 257, Code of Criminal Procedure deals with defence evidence in warrant cases. According to Sub-section (2) of Section 257, the Magistrate may, before summoning any witness require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court. It will be noticed that, Section 252, Code of Criminal Procedure does not contain any provision about expenses of witnesses similar to Section 244(3) or Section 257(2), Code of Criminal Procedure. 8. Lastly, we may notice Section 544, Code of Criminal Procedure Section 544 states: Subject to any rules...any Criminal Court may...order payment on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code. 9. Under this section it is the Government which can be made to pay the expenses of witnesses. A private complainant cannot be made to pay expenses of a witness u/s 544, Code of Criminal Procedure. 10. It will thus be seen that, the Code of Criminal Procedure does not contain any provision to empower a Magistrate to compel a private complainant to pay the expenses of a witness who has given evidence for him. So, the order for payment cannot be said to be an order made under the Code for the purposes of Section 547, Code of Criminal Procedure. So, the order for payment cannot be said to be an order made under the Code for the purposes of Section 547, Code of Criminal Procedure. The order could not, therefore, be enforced as a fine. 11. The reference is, therefore, accepted. The learned Magistrate's order dated 29th September, 1951 is set aside.