CHATURBHUJ Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a criminal revision directed against the order of the Additional Sessions Judge No. 1, jodhpur, dated March 4, 1974, by which he affirmed the order of the trial court to the effect that the accused should bear the expenses for Dr. S.B. Mathur's appearance in the trial Court as a defence witness. The accused persons are dissatisfied and are before me.

(2.) In order to appreciate the ambit of this controversy, and which must be of not infrequent recurrence, it will be necessary to recall the circumstances in which it arises. On March 23, 1970 the Additional Munsiff-Magistrate No. 2, jodhpur took cognizance of an offence under section 325/34 of the I.P.C. against Chaturbhuj and his wife Mst. Gauri on a report in writing of such facts made by police as envisaged by section 190(l)(b) of the Code of Criminal Procedure. The offence under section 325 I.P.C. is a cognizable offence. The prosecution concluded its evidence and amongst the witnesses examined by it was Dr. S.B. Mathur (P.W. 6). Accused, when they entered defence, prayed for the recall of Dr. S.B. Mathur as one of the defence witnesses. The learned Magistrate allowed the request. Dr. S.B. Mathur, who was a Medical jurist, Jodhpur at the material time has since been transferred to Jaipur. His re-call would cost about Rs. 200/-. The learned Magistrate directed the accused in exercise of the powers under section 251 A(10) of the Code of Criminal Procedure to deposit the expenses. The accused pleaded poverty and requested that the expenses should be borne by the State. The Magistrate declined the request. The accused went up in revision before the learned Additional Sessions Judge No. 1, jodhpur but met with no better fate and this has brought the accused before me and it is urged on his behalf that in a case of this nature it is the State Government who should bear the expenses.

(3.) Learned counsel for the applicant has invited my attention to a judgment of this Court in D.B Criminal Misc. Case No. 129/59, decided on 1st October, 1959, in which Ranawat & Bhandari JJ. observed that it was for the State to bear the expense in view of sub-rule (3) of R. 1 relating to the payment of expenses to witnesses.