JITU ALIAS BISWAJIT DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this petition under Section 482, Cr.P.C. the petitioners challenge the legality of the order dated 19.4.1999 passed by the learned Second Additional Sessions Judge, Bhubaneswar in S.T.Case No. 27/ 502 of 1996 debarring the petitioners to examine the defence witnesses as per the list submitted by them on 15.4.1999 and directing the petitioners to deposit Rs. 500/ - towards the expenses of a witness and Rs. 150/ -towards the cost of special messenger.

(2.) THE petitioners are facing their trial in Sessions Trial No. 27/ 502 of 1996 before the learned Addl. Sessions Judge, Bhubaneswar. After the prosecution evidence was closed and as the petitioners were not acquitted under Section 232, Cr.P.C. they were asked to enter into their defence. At that stage the petitioners filing a list of witnesses whom they wanted to examine in their defence made a prayer to compel the attendance of those witnesses. On 19.4.1999 they filed another petition to summon one Prafulla Kumar Parida as a defence witness. On that date the learned Second Addl. Sessions Judge refused to summon the witnesses the list for which was filed on 15.4.1999 on the ground that the petitioners failed to file written process. The petition filed on 19.4.1999 was allowed with a direction to deposit Rs. 500/ - towards the expenses of the witness and Rs. 150/ - towards the cost of Special Peon. Being aggrieved by the aforesaid order, the petitioners have filed this petition.

(3.) THE next contention of the learned counsel of the petitioners is that in the absence of any provision requiring the petitioners to meet the expenses of the witnesses and the special peons, the order passed by the learned Second Additional Sessions Judge requiring the petitioners to deposit the cost is illegal. The learned Additional Government Advocate, on the other hand, argued in support of the impugned order. The question arose whether in a trial under sessions procedure the accused can be asked to deposit the expenses of the witnesses summoned to adduce evidence in defence of the accused and the cost of the special peon. In the above context, it is noticed that though in the cases triable under warrant procedure discretion is available to the Court, as envisaged in Section 243(3), Cr.P.C. to direct the accused to deposit the reasonable expenses of the witnesses, no such provision is there under Chapter XVIII, Cr.P.C. which contains the procedure to be followed in trial before a Court of Session. Section 312, Cr.P.C. which appears in Chapter XXIV empowers the Criminal Courts to order payment by the Government of reasonable expenses of any complainant or witness attending the Court for the purpose of any enquiry, trial or other proceeding subject to any Rule made by the State Government. Section 312 of the Code runs as follows :