RAJENDRA PRASAD Vs. REPUBLIC OF INDIA

JUDGEMENT

(1.) The petitioner has filed this petition under Sec. 482 of the Code of Criminal Procedure, 1973 (for short, the Code') for quashing the order dated 28-2-1994 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 37 of 1990 in which he stood charged for the offences punishable under Sec. 13(2) read with Sec. 13(1)(c) of the Prevention of Corruption Act, 1988 and also under Sec. 409 IPC. At the trial of the aforesaid case, 27 witnesses were examined on behalf of the prosecution of whom PW 5 B.N. Mohapatra, a Senior Divisional Accounts officer at Chakradharpur who proved some documents could not be cross-examined as copies of those documents proved had not been supplied to the petitioner. After the prosecution evidence was closed when the petitioner entered into his deference, he applied for recalling PW 5 for cross-examination and also for summoning three defence witnesses. By the impugned order, the learned Special Judge, while allowing the prayer of the petitioner, directed issuance of summons to PW 5 and the defence witnesses on his depositing witness-expenses to the tune of Rs. 1200/- at the rate of Rs. 300/- per head. No reason was, however, given for his asking the petitioner to deposit the witnesses-expenses. Being aggrieved by such order, the petitioner has approached this Court for quashing the order directing to deposit Rs. 1,200/- towards witness-expenses.

(2.) The relevant provisions for consideration are Secs. 243 and 312 of the Code. Under Sub-Sec. (3) of Sec 243 a Magistrate may, before summoning any witness on an application under Sub-Sec. (2) require that the reasonable expenses incurred by the witness in attending for the purposes of the trial he deposited in Court Sec. 312 prescribes that any Criminal Court may, if it thinks fit, order payment on the part of Government of the reasonable expenses of any complainant or witness attending for the purposes of any enquiry, trial or other proceeding before such Court under this Code and such direction shall be subject to any rules made by the State Government. The word 'witness' appearing in this section may also mean defence witness. If these provisions are considered separately or conjointly, they mean that a Criminal Court has discretion to direct an accused to deposit the expense of any defence witness or prosecution witness.

(3.) The Orissa Criminal Court Witnesses(Payment of Expenses), Rules, 1963 (in short, 'the 1963 Rules') framed under the old Cr PC prescribe, inter alia, in Rule 3 that the Criminal Courts are authorised to pay the expenses of witnesses, whether for the prosecution or for the defence, in all cases entered as not bailable in column 5 of Schedule II appended to the Code. The offence under Sec. 409, IPC against the petitioner has been entered as not-bailable in column 5 of Schedule II appended to the Code. Under Sec. 484(2)(b) of the Code, the aforesaid 1963 Rules framed, as stated earlier, under the old Cr PC shall be deemed to have been issued under the Code. Thus, the learned Special Judge had the jurisdiction to direct the expenses of the witnesses required to be summoned by the petitioner to be paid by the State. He having not exercised the jurisdiction, the question is whether in a warrant case relating to an offence non-bailable in nature, witness-expense has to be always borne by the State or a Criminal Court has power to direct the same to be paid by the accused person.