AMBIKA Vs. STATE

JUDGEMENT

(1.) THIS application for revision arises in the following circumstances.

(2.) AMBIKA applicant, is being tried by the learned Assistant Sessions Judge, Ghazipur on a charge under Section 307/34 IPC. The prosecution case is that in furtherance of the common intention of himself and one other person the applicant attempted to murder one Surendra. It appears that victim Surendra had made a dying declaration before the then Sub-Divisional Magistrate, Ghazipur Sri Ram Yagya Singh. The prosecution did not prove it and after producing other witnesses closed its evidence. After the statement of AMBIKA applicant, under Sec. 313 CrPC was recorded, he was called upon to enter on his defence. He then moved an application before the learned Assistant Sessions Judge praying that the learned Sub-Divisional Magistrate, Sri Ram Yagya Singh, may be summoned as a defence witness from Kanpur, to which place he had been transferred in the meantime. In this application it was alleged that the prosecution had deliberately not proved the dying declaration and had tried it, and it was necessary in the interest of justice that this dying declaration may be proved. It was further stated that in this application that the applicant was a poor man and was not in a position to pay the expenses of summoning the aforesaid witness and accordingly it was prayed that the witness may be summoned at Government expense.

(3.) THE learned counsel for the applicant contended, in the first place, that normally the State must bear the cost of causing the attendence of the witnesses of an accused person and this rule cannot and should not be departed from without adequate reasons. He contended that even if the accused is in fact in a position to pay the expenses of his witnesses this is not a valid ground for departing from the aforesaid rule. In support of these contentions the learned counsel for the applicant placed reliance upon ruling of the Lahore and Punjab High Courts reported in Parshotam Das v. Emperor, AIR 1936 Lahore 919, Khushi Mohammad v. Chaudhari Abdulla Khan, AIR 1937 Lahore 458 and Jit Singh v. State, AIR 1963 Punjab 143. Secondly, the learned counsel for the applicant contended that the applicant was not in a position to deposit such a large sum as Rs. 300/-.to meet the travelling expenses etc. of the witness and the learned Assistant Sessions Judge was in error in directing the applicant to deposit the expenses of calling the witness merely on the ground that he was on bail and that he had engaged a senior counsel to conduct his defence.