NARBDESHWAR TEWARI Vs. INDRA MANI TRIPATHI AND OTHERS

JUDGEMENT

(1.) THIS is complainant's revision directed against the order of the magistrate dt. 13 -12 -1969 requiring the complainant to deposit diet money and expenses for summoning the witnesses. Learned counsel for the Applicant has argued that it was warrant trial and as such the order for depositing the expenses and diet money of the witnesses was illegal as there was no such provision Under Section 252 Code of Criminal Procedure although there was similar provision Under Section 244 Code of Criminal Procedure in trial for summon cases. In support of this contention he has placed reliance on the case of Kamalapati Pandey v. State, 1955 AWR 462 and the case of Ram Bahadur Singh v. State, 1963 AWR 353. There is also unreported decision of Division Bench in Cr. Misc. Appln. No. 166 A of 1960 and Cr. Ref. No. 191 of 1960 dt. 14 -3 -1961 on the same point.

(2.) LEARNED Asstt. Govt. Advocate has tried to distinguish these cases on the point that all these decisions were pertained to the stage Under Section 252 Code of Criminal Procedure and not Under Section 252(1) Code of Criminal Procedure. He has argued that Under Section 252(2) Code of Criminal Procedure the complainant was bound to summon his own witnesses and the court would have then examined them and only Under Section 252(2) Code of Criminal Procedure the magistrate could have summoned such witnesses as he might have thought necessary. According to him it was by way of concession that the magistrate summoned the witnesses suggested by the complainant at the stage Under Section 252(1) but ordered that their diet money and the expenses be paid agree with the contention of the learned Asstt. Govt. Advocate. There is no separate stage Under Section 252(2) Code of Criminal Procedure than from the stage of Section 252(1) Code of Criminal Procedure. A plain reading of the section shows that in case the complainant himself produced witnesses the magistrate was bound to examine them. But in case the complainant wanted the magistrate to summon some witnesses he could summon only such witnesses as he considered necessary. When he considered it necessary to summon some witnesses it will be presumed that it was Under Section 252(2) Code of Criminal Procedure. There is no provision for the deposit of diet money and the expenses for such witnesses who are summoned for warrant trials. Although there is such a provision Under Section 244 Code of Criminal Procedure for summoning the witnesses for summon cases. The order passed by learned magistrate was dearly illegal and cannot be sustained. The revision is accordingly allowed. The order dt. 13 -12 -1969 is set aside. The magistrate is directed to summon the witnesses without insisting for depositing diet money and the expenses.