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2008 DIGILAW 141 (GAU)

Mainul Haque v. State of Tripura

2008-02-15

UTPALENDU BIKAS SAHA

body2008
JUDGMENT U.B. Saha, J. 1. In this revision petition, the accused Petitioner impugned the order dated 1.7.2008 whereby and whereunder the learned Additional Sessions Judge, North Tripura, Dharmanagar in case No. S.T. 68 (NT/D)/05 directed the Petitioner to deposit the expenses for summoning the defence witnesses within seven days from the date of the order. 2. Heard Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. S. Ghosh, learned Counsel for the Petitioner and Mr. D. Sarkar, learned P.P. appearing for the State Respondent. 3. The question which is to be answered by this Court is whether the accused Petitioner is liable to deposit the expenses for summoning the defence witnesses in a sessions trial? 4. The background facts of the case in nutshell are as follows: The Petitioner is one of the accused in Sessions Trial case No. 68/05 under Section 323 / 326 / 302 / 34 IPC which is pending before the learned Additional Sessions Judge, North Tripura, Dharmanagar. Another sessions trial case No. 39 (NT/D) of 2007 under Section 323 / 324 / 34 IPC is also tried relates to the same incident, rather to say a case and a counter-case. On completion of the examination of the prosecution witnesses, the accused person has been examined under Section 313 Code of Criminal Procedure. Thereafter, in the Sessions Trial No. 68 of 2007, the present Petitioner being an accused prayed for examination of the defence witnesses whereas no such prayer was made from the side of the accused in Sessions Trial No. 39 of 2007. On 21.6.2007, the Petitioner filed an application under Section233(3) of the Code of Criminal Procedure before the learned Additional Sessions Judge, Dharmanagar praying for summoning six witnesses named therein at State expenses stating, inter alia, that those witnesses were relevant and material, and examination of those witnesses were essential, more particularly, to prove the alibi of the accused Petitioner to the effect that he was hospitalized in Civil Hospital, Aizwal, Mizoram, from the period from 22.02.2005 to 28.02.2005 and the date of occurrence took place within the aforesaid period. The present Petitioner also in support of his aforesaid submission submitted the original discharge certificate issued by the Civil Hospital, Aizwal, Mizoram along with inner-line pass issued in his favour on the basis of which, he travelled Aizwal, Mizoram. 5. The present Petitioner also in support of his aforesaid submission submitted the original discharge certificate issued by the Civil Hospital, Aizwal, Mizoram along with inner-line pass issued in his favour on the basis of which, he travelled Aizwal, Mizoram. 5. The aforesaid petition was taken up for hearing on 1.7.2008 and the learned Additional Sessions Judge, North Tripura, Dharmanagar i.e. the Trial Court after hearing the parties passed the impugned order as afore-noted. Being aggrieved by the said order, the present revision petition is filed. 6. Mr. Bhowmik, learned senior-Counsel for the Petitioner submits that the present Petitioner is a day labourer and it is not possible on his part to deposit the expenses for summoning the defence witnesses as asked by the learned Trial Court which is also not the prescription of law. As such, the whole order is beyond the provisions of law. When the constitutional scheme is there for providing legal aid to the poor people for getting justice from a Court of law, and while in a sessions case, it is the duty of the Court to provide all opportunity to the accused person to prove his innocence by way of examining the defence witnesses at the state expenses, the Court should not direct the Petitioner to deposit the cost for summoning the defence witnesses, Mr. Bhowmik argues. Referring to the provisions to Sections 233(3), 243(3) and 254(3) Code of Criminal Procedure, learned senior Counsel tried to convince this Court that the procedure for summoning the defence witnesses in a sessions case and the procedure for summoning the defence witnesses either in summon case or in warrant case tried by the Magistrate are totally different. In summon case, the legislature cast duty on the accused for depositing the expenses of summoning the defence witnesses, but in sessions trial, the legislature specifically intended that when the accused applies for issue of any process for compelling the attendance of any witness or the production of any document or thing, then the Judge shall issue such process unless he considers, for reasons to be recorded, 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. In support of his aforesaid contention, he placed reliance on the decision of the Allahabad High Court in Mahe Aalam v. State of Uttar Pradesh reported in 2005 Crl.L.J. 4554 wherein the Allahabad High Court considering the decision of the various High Courts held that the Court cannot direct or require accused to pay expenses of witnesses sought to be examined by him in his defence. Finally, Mr. Bhowmik submits that the provisions of the Code particularly of Section 233(3)of the Code of Criminal Procedure is only for safeguarding the rights of the accused, not to victimize the accused due to his poverty and the State being the custodian of the citizens, it is the duty of the State to come forward with fairness that the State will provide the expenses for summoning the defence witnesses being it is the duty of the State to provide fair trial to an accused. As such, for failure of rendering justice to the accused Petitioner by the learned Additional Sessions Judge, the order impugned herein is liable to be set aside, he contended. 7. Mr. Sarkar, learned P.P. submits on instructions that the accused is entitled to examine his defence witnesses at the state expenses. In support of his aforesaid contention, Mr. Sarkar relied on the averment made in Para-5 of the affidavit filed on behalf of the State Respondents, wherein it is stated that the Court while trying a case shall treat the prosecution and the defence at par and if the Court is satisfied on the prayer of the accused to issue summon to a witness, the expenses are to be paid from the fund placed under the disposal of the Court towards Diet and T.A. to the witnesses as prescribed under Section 233(3) of the Code of Criminal Procedure. Whether a witness will be summoned for appearing before the Court or not that is the discretion of the Court. 8. This Court has given anxious consideration to the submission of the learned Counsel of the parties as well as law reports cited before it. On going through the provisions of the Code of Criminal Procedure, it appears that the Legislature prescribed the detail procedure for conducting the trial either in summon case, warrant case or in sessions trial. Chapter-XVIII to XXI of the Code deals with the procedure of conducting these trials. On going through the provisions of the Code of Criminal Procedure, it appears that the Legislature prescribed the detail procedure for conducting the trial either in summon case, warrant case or in sessions trial. Chapter-XVIII to XXI of the Code deals with the procedure of conducting these trials. Chapter XXI of the Code provides the procedure for summary trial. In such trials, on the plea of the accused and his examination, if any, the findings are recorded and thereafter final orders are passed, if the accused does not plead guilty the Magistrate also, records the substance of the evidence, and delivers the judgment containing brief facts, reasons and findings. No sentence of imprisonment of a term exceeding three months can be passed in case of conviction in a trial conducted under these provisions. Chapter XX and Chapter XIX of the Code provides procedure for trial of summons cases and the warrant cases respectively. The procedure for trial before the Court of Sessions is provided in Chapter-XVIII of the Code as stated supra and in all these Chapters dealing with the trial and providing procedure thereof, without going into the technicalities regarding the procedure of trial, in all the trials the procedure is almost the same and similar, i.e. after the accused appears in the Court the particulars of the offence of which he is accused, is told to him and he is asked whether he pleads guilty or has any defence to make, and whether he claims to be tried, thereafter evidence which the prosecution produces, in support of the charge, is recorded and thereafter the accused is heard and the evidence which the accused produces in his defence, is taken. The procedure prescribed in warrant case and the summon case tried by the Magistrate for summoning the witnesses by the defence are almost similar. But if the offence is triable by the Court of session, the only requirement is application of the prosecution, for issue of process for compelling the attendance of any witness or production of document or other things, the prosecution is not required to deposit or pay any expenses, and requirement of deposit of expenses for summoning the defence witnesses is also not prescribed therein. But the learned trial Court ignoring the provisions of Section 233(3) of the Code of Criminal Procedure took aid from the provisions of Tripura Criminal Procedure (Payment of expense to complainant and witnesses) Rules, 1972 and held that defence may produce their witnesses at their own costs before it. 9. The learned Trial Court also failed to consider the ratio of the decision of the Himachal Pradesh High Court in Surinder Kumar v. State reported in 1982 Crl.L.J. 548. In the said decision, the Himachal Pradesh High Court stated, inter alia, that it is true that under Sub-section (3) of Section243, the Magistrate has been given a discretion to ask an accused to pay the reasonable expenses likely to be incurred by the witnesses in attending the Court. But then this discretion has to be exercised reasonably. There has to be some reasons why an accused has been asked to deposit the amount. The order asking the accused to deposit the amount cannot be made as a matter of routine as has been done in the present case. By the aforesaid observation, the Himachal Pradesh High Court quashed the impugned order therein whereby and whereunder the accused was asked to deposit the reasonable expenses likely to be incurred by the witnesses in attending the Court. More so, in the said case, Sub-section (3) of Section 233 was not for consideration to be answered as the case in hand. Even though Sub-section (3) of Section 233 of the Code of Criminal Procedure fell for consideration, but the Himachal Pradesh High Court considered the similar provision i.e. Sub-section (3) of Section 243 of the Code of Criminal Procedure which is also relating to the examination of the defence witnesses and the order of the trial Court was set aside. In the instant case also, the Trial Court did not give any reason why the accused was asked to deposit the expenses for summoning the defence witnesses except mentioning the rules namely, Tripura Criminal Procedure (Payment of expense to complainant and witnesses) Rules, 1972 and the rules framed by the State is prior to the amendment of the Code of the Criminal Procedure and before insertion of the provisions of Article-39A in the Constitution. Therefore, the said rule has also no application in the instant case, rather the case of Mahe Aalam (supra) as placed by Mr. Therefore, the said rule has also no application in the instant case, rather the case of Mahe Aalam (supra) as placed by Mr. Bhowmik is applicable in this case, particularly Para 30-34 wherein Allahabad High Court noted that free legal aid is provided to the accused in session trial only with a view that accused may defend himself properly and concept of fair trial may not get frustrated, for want of legal aid; fair trial may also not be possible if the accused is compelled to pay for the expenses of witnesses, he wants to adduce in his defence, in view of these facts it cannot be insisted on that the accused should bear the cost of summoning the witness, to be produced in defence. If the prosecution can get its witness summoned through process of Court the accused cannot be discriminated, he has a similar right to insist on that his witness may also be summoned in the same manner, without deposit of any expense and he cannot be compelled to deposit the same. The Allahabad High Court in Mahe Aalam (supra) also observed that there is no provision in the Code which prevents the Court from summoning the witness or production of any document or thing at the expense of the State. If the accused is facing trial before a Magistrate and accused has no means to pay for the expense of his witness, sought to be examined in defence the expenses are to be paid by the State, the witness of defence are to be summoned at the expenses of the State, words used in Sub-section (3) of Section 243 are 'may require' mean that Court has discretion and power to exonerate the accused from paying the reasonable expenses to be incurred by the witness in attending the Court, for the purpose of trial, absence of words 'may require' or any such condition which may require for depositing the expense, in Sub-section (3) of Section 233, make it clear that requirement of payment of deposit of expenses of witness to be examined by accused in his defence is no condition for issuing process for compelling the attendance of any witness or the production of document or thing. Since no such condition has been engrafted in the provisions of the Code the trial Court cannot ask or compel the accused or require that any expenses incurred by witness in attending for purpose of trial be paid or deposited by the accused. 10. This Court is in full agreement with the observation of the Allahabad High Court in Mahe Aalam (supra). More so, right to life also includes right to justice and right to justice includes fair trial and when the ftamer of the Constitution considering the preamble of the Constitution inserted the provisions of Article 39A by way of 42nd Amendment Act of the Constitution for providing equal opportunity to the citizens for securing equal justice and free legal aid, the Court should not burden the accused to deposit the expenses for summoning the defence witnesses whom he wanted to examine in support of his defence. Article 39A read with Article 21 of the Constitution are to reinforce the right of person involved in a proceeding to get legal aid. Even Section 304 of the Code has given certain power to the Court for examining to provide legal aid to the accused who is not represented by his own pleader, meaning thereby a duty cast on the Trial Court to see that both the prosecution and the defence should get the similar treatment from Court of law. If similar treatment cannot be provided to the accused by way of providing the State expenses for summoning the defence witnesses, then that would be denial of justice to the accused person. Denial of justice on the ground of financial capacity of a citizen is unreasonable, unfair and irrational. It appears from the order of the Trial Court that the Trial Court itself was satisfied that summoning of defence witness is required in the interest of justice, but for summoning the defence witness he put a rider by way of asking the accused for depositing the expenses of summoning the defence witnesses which is unreasonable and unfair. And an unfair order is nothing but violation of the Article 14 of the Constitution as the said Article is designed to prevent discrimination. Therefore, according to this Court, the impugned order passed by the Trial Court is needed to be interfered with by this Court. And an unfair order is nothing but violation of the Article 14 of the Constitution as the said Article is designed to prevent discrimination. Therefore, according to this Court, the impugned order passed by the Trial Court is needed to be interfered with by this Court. Accordingly, the impugned order dated 1.7.2008 is set aside as the accused Petitioner is not liable to deposit the expenses from his own for summoning the defence witnesses in a sessions trial. The learned trial Court is directed to issue summons to the cited defence witnesses at the State expenses and also to dispose of the trial at an early date as the trial is pending before him for no fault of the accused Petitioner.