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1974 DIGILAW 183 (RAJ)

Chaturbhuj v. State of Rajasthan

1974-05-09

BERI

body1974
BERI, C.J.—This is a criminal evision directed against the order of the Additional Sessions Judge No. 1, Jodhpur, dated March 4, 1974, by which he affirmed the order of the trial court to the effect that the accused should bear the expenses for Dr. S. B. Mathurs appearance in the trial Court as a defence witness. The accused persons are dissatisfied and are before me. 2. In order to appreciate the ambit of this controversy, and which must be of not infrequent recurrence, it will be necessary to recall the circumstances in which it arises. On March 23, 1970 the Additional MunsifF-Magistrate No. 2, Jodhpur took cognizance of an offence under sec. 325/34 of the I. P. G. against Chaturbhuj and his wife Mst. Gauri on a report in writing of such facts made by police as envisaged by sec. 190(l)(b) of the Code of Criminal Procedure. The offence under sec. 325 I.P.C. is a cognizable offence. The prosecution concluded its evidence and amongst the witnesses examined by it was Dr. S. B. Mathur (P. W. 6). Accused, when they entered defence, prayed for the recall of Dr. S. B. Mathur as one of the defence witnesses. The learned Magistrate allowed the request. Dr. S. B. Mathur, who was a Medical Jurist, Jodhpur at the material time has since been transferred to Jaipur. His re-call would cost about Rs. 200/. The learned Magistrate directed the accused in exercise of the powers under sec. 251 A(10) of the Code of Criminal Procedure to deposit the expenses. The accused pleaded poverty and requested that the expenses should be borne by the State. The Magistrate declined the request. The accused went up in revision before the learned Additional Sessions Judge No. 1, Jodhpur but met with no better fate and this has brought the accused before me and it is urged on his behalf that in a case of this nature it is the State Government who should bear the expenses. 3. Learned counsel for the applicant has invited my attention to a judgment of this Court in D.B Criminal Misc. Case No. 129/59, decided on 1st October, 1959, in which Ranawat & Bhandari JJ. observed that it was for the State to bear the expense in view of sub-rule (3) of R. 1 relating to the payment of expenses to witnesses. 4. Learned counsel for the State submits that Dr. Case No. 129/59, decided on 1st October, 1959, in which Ranawat & Bhandari JJ. observed that it was for the State to bear the expense in view of sub-rule (3) of R. 1 relating to the payment of expenses to witnesses. 4. Learned counsel for the State submits that Dr. S.B. Mathur was examined as a prosecution witness and if the accused had intended to prove their own injuries and medical report, they could have questioned Dr. Mathur when he was being examined as a prosecution witness. 5. This case calls for a harmonious construction between the provisions of sec.251-A (10) and the notification issued by the State Government under sec. 544 of the Code of Criminal Procedure. 6. Ssc. 251-A (10) of the Code of Criminal Procedure reads— "S. 25l-A(10)—The Magistrate, may, before summoning any witness on such application under sub-sec.(9), require that his reasonable expenses, incurred in attending for the purpose of the trial be deposited in Court." The relevant rule reads— "1. Cases in which Government is to pay the expenses— The Criminal Courts are authorised to pay at the rates specified below, the expenses of complainants or witnesses— (1) in cases in which the prosecution is instituted or carried on by or under the orders or with the sanction of the Government, or of any Judge, Magistrate, or any other public officer or in which it shall appear to the presiding officer to be directly in furtherance of the interests of the public service; 2) in ail cases entered in column 5 of Schedule II appended to the Code of Criminal Procedure and not bailable; (3) in all cases which are cognisable by the Police, and" 7. Sec. 251-A (9) provides that if the accused after he has entered upon his defence, applies to the Magistrate for the issuance of any process for compelling the attendance of the witness for the purpose of examination or cross-examination, or the production of any document or other thing, he shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Such ground is required to be recorded in writing presumably because the reasons for the refusal should be available for the scrutiny of the superior Court. Such ground is required to be recorded in writing presumably because the reasons for the refusal should be available for the scrutiny of the superior Court. Proviso to sec: 251-A(9) lays down that when the accused has cross examined or had the opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice. At this stage it will be relevant to remember that Dr. Mathur had been examined and cross-examined and he is being recalled. The explanation furnished by the learned counsel for the accused is that he had no copy of his medical certificate available with him when Dr. Mathur was cross examined. He had made an application on 13-1-1974 along with the certified copy of the medical certificate of Chaturbhuj : I have examined closely the certified copy of the medical certificate relating to Chaturbhuj son of Asuji but unfortunately it bears no date so as to indicate when it was supplied to Chaturbhuj. Dr. Mathur was examined and cross-examined as P.W. 6 on 8-10-1973 and the explanation of the accused person appears to be plausible that he was not aware of the existence of the medical certificates relating to himself and as he also claims, relating to Mst. Gauri. The learned Magistrate exercised his discretion in favour of the accused when he ordered the recall of Dr. Mathur to be cross-examined. To that extent I think his discretion was rightly exercised because the certified copy of the medical certificate of Chaturbhuj bears the date of 15-3-1970. The incident, according to the prosecution, took place on 14-3-1970. The medical certificates produced by the prosecution in regard to the injured persons are also dated 15-3-1970. Without expressing any opinion on the merits there seems to be a close chronological relationship between transaction and the medical certificate sought to be proved on behalf of the defence. The recall of Dr. Mathur in these circumstances is perfectly justified. 8. The next crucial question is: who should bear the expense? As distinguished from sec.251-A (9), where the legislature has employed the word shall issue, the language of sec. 251-A (10) employs the word may. The discretion resides in the presiding officer according to the ordinary rules of construction. The recall of Dr. Mathur in these circumstances is perfectly justified. 8. The next crucial question is: who should bear the expense? As distinguished from sec.251-A (9), where the legislature has employed the word shall issue, the language of sec. 251-A (10) employs the word may. The discretion resides in the presiding officer according to the ordinary rules of construction. Sub-rule (3) of R. 1, quoted above, which was enacted in exercise of the powers conferred on State Government under sec. 544 of the Code of Criminal Procedure, Government is to pay expense and the criminal courts are authorised to pay at the rates specified in all cases which are cognisable by the police. Once the Magistiate decides that the witness is necessary and he is not being summoned in defence for any of the purposes such as vexation or delay or for defeating the ends of justice and the case is cognizable, our Court has held in a Division bench case that the expenses are to be borne by the State. I might hasten to observe that at the time of issuance of the process for compelling the attendance of the defence witness, it is necessary for the Magistrate to exercise his discretion cautiously. 9. I have already held that the discretion in this case was properly exercised because of the date of the injuries in the true copy of the medical certificate. Time and again the Supreme Court has observed that the injuries on the person of the accused, if they have any relation to the case, must be brought to the notice of the Court. The prosecution would have done well to have itself produced the medical certificates of the accused if they were aware of it. Fairness demanded it. When the prosecution did not do it and left it to the accused, and they had to obtain certified copies and then recall the Doctor, fairness and the rules both enjoin that the State should bear the expense. 10. With these observations this revision-application is allowed. The State shall bear the expenses for recalling Dr. S. B. Mathur, as prayed for by the defence. Orders of the learned Magistrate and that of the learned Additional Sessions Judge are quashed to the extent they are inconsistent with this order.