Madhya Pradesh High Court
Nandlal And Ors. vs State Of Maharashtra on 10 March, 2008
Equivalent citations: 2008(3)MPHT50
Author: R.C. Mishra
Bench: R.C. Mishra
ORDER R.C. Mishra, J.
1. A short yet a significant question has been raised in this revision preferred against the order dated 13-3-2007 passed by Sessions Judge, Chhindwara in S.T. No. 237/1996. It may be formulated as under:
whether the Court of Session has any discretion in the matter of payment, on the part of the Government,' of the expenses of defence witnesses.
2. The petitioners stand prosecuted for the offences punishable under Sections 376 (2) (g), 302 and 201 of the IPC allegedly committed at Nagpur (Maharashtra). However, by virtue of order dated 15-7-1996 passed by the Supreme Court in S.L.P. No. 1240/96, the case was transferred for trial to the Court of Session at Chhindwara (M.P.). In defence, the petitioners proposed to examine as many as 9 witnesses including (i) Dr. R.K. Wright, a resident of Turteltown, USA, (ii) Dr. Anil Agrawal, Professor, Maulana Azad Medical College, New Delhi and (iii) Mr. P.K. Satyanathan, Govt. Pleader, Nagpur. However, the learned Trial Judge rejected their prayer in respect of these three witness for a variety of reasons. Being aggrieved, the petitioners challenged legality and correctness of the impugned order by filing a revision before this Court. It was also allowed vide order dated 26-11-2006 passed in Cr. Revision No. 1568/06, reported as 2007(1) MPLJ 84. Accordingly, the Trial Court was directed to summon all the three witnesses named above (hereinafter referred to as 'the witnesses') in accordance with law. Thereafter, the petitioners made an oral prayer before the Trial Court for a direction requiring the State Government to meet expenses of the witnesses. The request was vehemently opposed by the prosecution. After hearing arguments, the learned Trial Judge, while drawing an analogy from Section 243 (3) of the Code, though applicable to trial of warrant cases, and observing that the petitioners were in a position to incur expenses of the witnesses, proceeded to reject their prayer.
3. Legality, propriety and correctness of the order saddling the petitioners, who are accused of serious offences including one entailing capital punishment with the liability, has been assailed on various grounds.
4. The main contention canvassed by the learned Counsel for the petitioners is focused at conspicuous distinction between the provisions of Sections 233 and 243 of the Code. He is of the view that once it was held by this Court that none of the witnesses was being summoned for the purpose of vexation or delay or for defeating the ends of justice, the learned Trial Judge was bound to require the State Government to bear their expense.
5. To buttress the contention, reference has been made to the following observations made by Division Bench of Kerala High Court in K.V. Baby v. Food Inspector, Wadakkanchery Circle 1994 Cri.LJ 3421:
In the absence of any rule made by the State Government, the Magistrate has discretion under Sub-section (3) of Section 243 and Sub-section (3) of Section 254 either to direct the accused persons, to pay the expenses of the witness, or else to summon them at the expense of the State. But in respect of trial before a Court of Session, under Section 233 of the Code of Criminal Procedure, 1973, there is no such corresponding provision like Section 243 (3) and Section 254 (3) requiring the reasonable expenses of the witnesses incurred in attending the Court for the purpose of trail to be deposited in Court. Such a direction to deposit the batta necessary for the witnesses is conspicuously absent in respect of Session Trial before a Court of Session. Even though under Section 216 of the Code of Criminal Procedure, 1898, there is a provision empowering the Court requiring such sum to be deposited as the Magistrate thinks it necessary to defray the expenses of obtaining the attendance of the witnesses and all the other proper expenses, the substance of the said section was not incorporated in the new amended Section 233 of the Code of Criminal Procedure, 1973. Thus, the intention of the Parliament in that regard is clear, viz., that in respect of Sessions Trial, the Court of Session has no option to direct the accused person to deposit the necessary batta for the defence witness. Even though under Section 233 (3) of the Code, the Sessions Judge has the power to refuse an application filed by the accused before the issue of any process for compelling the attendance of any witness if, he considered for reason to be recorded, that such application is made for the purpose of vexation or delay or in defeating the ends of justice. But there is no provision under Section 233 of the Code of Criminal Procedure directing the accused to deposit the batta and expenses of a witness which the accused wanted to examine in the Session Trial.
6. Learned Counsel for the petitioners is further of the view that, even for recalling a prosecution witness for further cross-examination under Section 233 of the Code, the accused cannot be required to meet his expenses. For this, attention has been invited to a decision rendered by Co-ordinate Bench of this Court reported as 2005(4) MPLJ 98, to decide yet another revision preferred by the petitioners only. The subject-matter of challenge is that revision was the order directing the petitioners to deposit expenses of a prosecution witness namely G.V. Rao, who was sought to be re-summoned for further cross-examination. The Court, observing that a belated production of certain documents by the prosecution had necessitated further cross-examination, allowed the revision and, accordingly, set aside the direction.
7. Still, to fortify the aforesaid contention, learned Counsel of the petitioners has preferred to place primal reliance on the decision of the Allahabad High Court in Mahe Aalam v. State of Uttar Pradesh 2005 Cri.LJ 4554, wherein it was held categorically that, in a Sessions Trial, the Court cannot direct or require accused to pay expenses of witnesses sought to be examined by him. The relevant extracts of the decision may be reproduced as under:
There is no provision in the Code which prevents the Court from summoning the witness or production of any document or thing at the expense of the State. If the accused is facing trial before a Magistrate, and accused has no means to pay for the expense of his witness, sought to be examined in defence, the expenses are to be paid by the State, the witness of defence are to be summoned at the expenses of the State, words used in Sub-section (3) of Section 243 are 'may require' mean that Court has discretion and power to exonerate the accused from paying the reasonable expenses to be incurred by the witness in attending the Court, for the purpose of trial, absence of words 'may require' or any such condition which may require for depositing the expense, in Sub-section (3) of Section 233, make it clear that requirement of payment of deposit of expenses of witness to be examined by accused in his defence is no condition for issuing process for compelling the attendance of any witness or the production of document or thing. Since no such condition has been engrafted in the provisions of the Code the Trial Court cannot ask or compel the accused or require that any expenses incurred by witness in attending for purpose of trial be paid or deposited by the accused.
Accordingly,...in a trial before a Court of Session, the Court cannot direct or-require the accused to deposit or pay the expenses of the witnesses sought to be examined by accused in his defence, the only condition on which any such prayer of accused can be refused is that such prayer has been made on the ground or for the purpose of vexation or delay or for defeating the ends of justice and these reasons for refusing has to be recorded. No other condition can be imposed by the Court, i.e., by the Court of Session nor is recognized by the Code.
8. However, the learned Counsel for the respondent/State has contended that the order in question does not suffer from any apparent error of jurisdiction. According to him, there is no legal hurdle preventing the Trial Court from requiring the accused/petitioners to bear the expenses of the witnesses in the peculiar facts and circumstances of the case.
9. Before entering into the merits of rival contentions, it would be necessary to advert to the provisions of Sub-section (3) of Sections 233 and 312 of the Code of Criminal Procedure (for short 'the Code') and corresponding rule of the Rules and Orders (Criminal) (for brevity 'the Rules'):
233. Entering upon defence.:
(1) ...
(2) ...
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
Section 312. Expenses of complainants and witnesses.- Subject to any rules made by the State Government, 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 inquiry, trial or other proceeding before such Court under this Code.
Rule 558. Subject to the instructions hereinafter contained the Criminal Courts are authorized to pay the expenses:
(a) of complainants and witnesses, whether for the prosecution or the defence:
(i) cases prosecuted, instituted or carried on by, or under the orders of, or with the sanction of Government or any Judge, Magistrate or other Public Officer acting as such,
(ii) in cases in which the Presiding Officer considers such payments to be directly in furtherance of the public interest, and
(iii) in all non-bailable cases;
(b) witness summoned or recalled by the Presiding Officer of his own motion under Section 540 of the Code:
Provided that no payment shall be made to any witness or part of Government where the expenses for the attendance of such witness have been deposited in Court under Section 216, 244 or 257 of the Code.
Explanation: Cases instituted by Police Officers on other persons authorized by a Municipal Committee under the Central Provinces and Berar Municipalities Act, 1922 (II of 1922) or rules or bye-laws made thereunder are not cases falling under Clause (a)(i) of this Rule.
10. The rule, though framed under Section 544 of the Old Code, which corresponds to Section 312 of the New Code, was duly adopted by the State of Madhya Pradesh as constituted under the State Reorganization Act, 1956.
11. As explained by the Madras High Court in In Re Vendata AIR 1950 Mad. 283, although the word "witness" in Section 312 (supra), includes both prosecution and defence witnesses yet, the power given to the Criminal Court under this provision is discretionary. In this regard, the following guidelines have already been laid down by a Division Bench of this Court in Kodu v. Banmali 1968 JLJ 530:
(i) the discretion must be exercised according to rules if any made by the State Government,
(ii) the discretion, as any other, must be exercised judiciously,
(iii) whether such payment of expenses would be "directly in furtherance of the public interest".
12. In petitioners' earlier revision, the direction to deposit expenses of the witness viz., G.V. Rao sought to be re-summoned was set aside, vide the order, cited as 2005(4) MPLJ 98, on the ground that it might have caused prejudice to them. It is relevant to note that for arriving at this conclusion, reference had been made to the decision in Kodu's case (supra).
13. However, with great respect, I find myself unable to agree with the view taken by the Allahabad High Court in Mahe Aalam 's case (supra), wherein the effect of Section 312 was not examined at all. The view that the Trial Judge, after being satisfied that the accused had not applied under Section 233(3) of the Code for summoning any witness for the purpose of vexation or delay or for defeating the ends of justice, is not empowered to require him to pay the expenses of the witnesses, would defeat or rather reduce the provisions of Section 312 of the Code to a 'useful lumber' or 'dead letter' whereas the Rule of harmonious construction is that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible effect should be given to both.
14. As explained in In Re Vendata (supra), the word "may" in Section 312 of the Code indicates that the power to summon defence witnesses at Government expenses is discretionary and not mandatory. The expression "if it thinks fit" further requires the Court to exercise discretion judiciously and not arbitrarily. This apart the word 'authorised' occurring in Rule 558 is also significant. It clothes the Criminal Court with the financial power to sanction payment of expenses of any witness whether called by the prosecution or by the defence. In this view of the matter, the ratio of the decision in Mahe Aalam's case (supra), without reference to the crucial words of Section 312 of the Code deserves to be ignored as per incuriam particularly in the face of a diametrically opposite view taken by the Division Bench in Kodu 's case (supra).
15. Further, the pronouncement in K.V. Baby's case (supra), is also of no avail to the petitioners as it was clearly indicated therein that the Government of Kerala State had not framed rules under Section 312 of the Code whereas, as pointed out already, the payment of expenses of witnesses in the State of Madhya Pradesh is regulated by the Rules including Rule 558 (supra). As the power to make rules is not vested in the High Court, any rule contrary to or inconsistent with the rules made by the Government, even if framed by the High Court, would be ultra vires. It may be pointed out here that either Sub-section (3) of Section 233 nor Rule 558 of the Code lays down that expenses of every defence witness in a Sessions Trial shall be paid by the State Government.
16. For these reasons, the question, as formulated above, deserves to be answered in affirmative. Accordingly, it is held that, subject to the rules made by State Government under Section 312 of the Code, the discretion to make payment of the expenses of the defence witnesses is vested in the Court and this discretion is to be exercised judiciously in the wake of the guidelines already laid down in Kodu's case (supra) and supplemented by another guideline in 2005(4) MPLJ 98 (supra), requiring the Trial Judge to ascertain as to whether the failure to cause production of the defence witnesses at Government expenses would result in any prejudice to the defence.
17. Still, the learned Counsel for the petitioners has contended that even if it is held that the learned Trial Judge is invested with the discretion to direct the petitioners to bear the expenses of the defence witnesses, they should not have been asked to meet the expenses of medical experts simply because their financial position is sound. For this, reference has been made in the decision of the Lahore High Court in Parshotam v. Emperor AIR 1936 Lahore 919 that was followed in Jit Singh Rattan Singh v. The State . The verdict in Parshotam's case (supra) is an authority for the proposition that the accused should not be burdened with costs of expert especially when the Court is empowered to enforce attendance of witness and to pay him reasonable dues and in Jit Singh's case (supra), it was further laid down that capacity of accused to pay for his witness cannot be considered as a valid ground for refusing to summon the defence witnesses.
18. In reply, learned Counsel for the respondent/State has contended that the State Government cannot be directed to bear the expenses in a case that was transferred from Nagpur to Chhindwara at the instance of the petitioners. According to him, the petitioners have approached the medical experts, viz., Dr. R.K. Wright and Dr. Anil Agrawal directly and without any intervention of the Court. Attention has also been invited to the words 'authorized' occurring in Rule 558 above, in support of the contention that the State Government has left the matter to the discretion of the Criminal Court, as contemplated in Section 312 by the use of expression "if it thinks fit."
19. It is true that Sub-section (3) of Section 243 of the Code has no relevance to a trial before Court of Session. Further, there cannot be any quarrel with the proposition that the financial status of the accused would not be a decisive factor to make them liable for bearing the expenses of the witnesses but, it may often give considerable assistance in deciding the relevant aspects of prejudice or the public interest as highlighted above. Viewed from this angle, the second contention advanced by learned Counsel for the petitioners also does not deserve acceptance.
20. To sum up, although reasons assigned by the learned Sessions Judge in rejecting the petitioners' prayer were not fully sustainable in law yet, his ultimate decline to order the State Government to bear the expenses of the witnesses was otherwise perfectly justified in the light of the well settled legal position as applicable to the facts and circumstances of the case. Thus, in effect, the impugned order does not require any interference under the revisional jurisdiction.
21. In the result, the revision stands dismissed.