MAHTAB SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is a criminal reference by Mr. K.N. Joshi, the Sessions Judge of Mainpuri, recommending that the order passed by a Magistrate be set aside and ho be directed to give all reasonable facilities to the accused in establishing his defence the case before the Magistrate of Shikohabad was one under Section 110, Criminal P.C., and the accused Mahtab Singh resides in a village Amora in Shikohabad sub- division. The first order of the Magistrate was on 17 December 1937 and he stated that that date had been fixed for the defence witnesses at the request of counsel for the accused because it provided facility for the defence witnesses residing in the village of the accused which was close to the place where the Magistrate was holding his Court. the witnesses were not produced and the Magistrate adjourned the case until the next day and said that the accused should state the next day if he did not, wish to examine local witnesses, and he should prepare a list of his witnesses and file it in Court. The next day, on 18 December 1937, no witnesses for the defence were produced in spite of the order for production. The excuse given was that the list, was not complete. The Magistrate gave a further adjournment to 7 January 1938, and directed that list of defence witnesses should be filed by 23 December 1937. No such list was filed on 23rd December 1937. On the date fixed, 7 January 1938, the accused handed in a list of witnesses which contained so many names that the counsel for defence has not been able to count them. The list consists of 13 pages of which six pages are typed and the remaining pages are in handwriting, some in English and some in Hindi. The list is arranged by departments. First of all there are 16 railway witnesses; then come seven postal witnesses; then come seven canal department witnesses; then come eight witnesses of a newspaper called Bekar Sakha; then come ten college examiners; then come six outside officers, retired District Magistrate, etc.; then come 42 witnesses from Shikohabad Town, including school masters and medical practitioners and persons of position; then come ten candidates and diploma holders, some of whom come from places from which it is not possible to summon witnesses, such as Nepal; then come 13 witnesses from Mainpuri; six witnesses from Etawah; six witnesses from Muttra; nine witnesses from Agra; four witnesses from Cawnpore; three witnesses from Lucknow; three witnesses from Allahabad ; four witnesses from Lahore; four witnesses from Delhi; five witnesses from Aligarh; four witnesses from Bombay; five witnesses from Calcutta; one witness from Chandausi; three witnesses from Benares and one witness from Dacca in Bengal. These names are type-written. Then follows a large number of witnesses in handwriting from different parts of the province. The total of these in handwriting is 114. The total in the typed lists is 174, and the grand total is 288. Now, the order of the Magistrate which is under reference stated: He has now given a very long list of witnesses which he intends to call and examine and has given no reasons for such a large number of witnesses. However, I am not inclined to interfere with his choice as far as the number of witnesses and the nature of evidence he intends to produce, but he shall be responsible for the cost. He is not in custody and there is no reason why he should not stand the cost of witnesses when he is intending to summon such a large number of them. He shall therefore deposit their approximate cost within four days from this day otherwise no summonses can be issued to the witnesses. If ho is unable to make a correct estimate of the cost at present, he should deposit at least Rs. 500 to begin with and then adjust the amount later on.

(2.) It is clear that there was no refusal by the Magistrate to summon any of these witnesses under Section 257(1), Criminal P.C. but his order is passed under Section 257(2) which provides as follows: The Magistrate may, before summoning any witness on such application, require that his reasonable expenses incurred in attending for the purposes of the trial be deposited in Court.

(3.) An application was made to the Sessions Judge, stating in para. 2 that the applicant being on bail was no legal ground for saddling the applicant with the costs of summoning the witnesses, and in para. 3 that the order of depositing Rs. 500 as a condition precedent to the summoning of witnesses is practically to hamper the accused in his defence. The order of the Sessions Judge extends over three typed pages and in this order, although he refers in two places to Section 257(2), Criminal P.C., he deals with the matter as if it was a case of refusal to summon witnesses under Section 257(1), Criminal P.C. The learned Sessions Judge assumes that the provision of law which is in question is Section 257(1) and lie has apparently got this idea from three; rulings which he quoted. It is most regrettable that the learned Sessions Judge did not read Section 257(2) and apply his mind to it and apparently he has been misled by this neglect. The first ruling to which he referred was Parbhu V/s. Emperor . This was a case where p. 915, col. 2 states that the Magistrate did not adjourn the case for the evidence of a defence witness, Ram Narain. He ordered that the deposition of this witness should be dispensed with. The ruling referred to Section 257(1) and pointed out that the Magistrate under that sub-section had only power to refuse if the conditions of that sub-section existed. There was no question in that ruling of Section 257(2). It is true that the head-note by error refers to Sub-section (2), but the Court is not responsible for the errors of persons who compose law reports.