BADRI PRASAD Vs. STATE

JUDGEMENT

(1.) This is an application in revision from the judgment of the Sessions Judge affirming the order of the magistrate refusing Ito summon a defence witness on the ground that the accused had failed to deposit expenses for the same.

(2.) The offence for which the accused was being tried was one under Section 420 IPC, an offence triable by a Magistrate unless the latter was of the opinion that the circumstances were such that it should be committed for trial to the Sessions Court. However, it may be stated that the magistrate proceeded with the trial of the accused under Ch. XXI. After the accused had entered on his defence he applied for summoning a handwriting expert as a witness in his defence. The Magistrate directed the accused to deposit expenses for the same, but the latter failed to do so with the result that his application was rejected. He filed a revision against that order in the court of Sessions, which was dismissed. Hence this revision application in this Court.

(3.) The submission on behalf of the Applicant was that the point in issue was covered by the provisions of Section 257 Sub-section (1) which enacts that "if the accused after he has entered upon his defence applies to the Magistrate to issue process for compelling the attendance of any witness for the purpose of examination or cross examination...the Magistrate shall issue such process unless he considers that the application has been made on frivolous grounds". It shall be noticed that Section 257 is applicable to a case instituted on complaint and is not attracted where the accused is prosecuted on a police report, as was the case here. Indeed Sub-section (2) of Section 257 enjoins that the Magistrate may, before summoning any witness on the application of the accused, require that his reasonable expenses incurred in attending the court be deposited. Thus in a complaint case the court may insist upon the accused to deposit the expenses of a defence witness before issuing process to him. Where, however, an accused is prosecuted on j a police report the provision applicable is Section 251A. Sub-section (9) of that section provides that if the accused after he his entered upon his defence applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross examination the Magistrate shall issue such process unless he considers the application to be frivolous. Sub-section (10) adds a rider to Sub-section (9) and lays down that the Magistrate may before summoning any witness under Sub-section (9) require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in court. So that if an accused seeks to call a witness in his defence he cannot Insist on summons being issued without first depositing the expenses of the witness for attending the court.