Orissa High Court
Basudev Purohit vs Republic Of India And Anr. on 26 April, 1995
Equivalent citations: 1995CRILJ3867
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. In this application under Section 432 of the Code of Criminal Procedure, 1973 (in short, the 'Code') essentially two pointer have been reised ffor consideration. First relates to legality of the direction given by the learned Special Judge, Bhubanaswar requiring the petitioner to de posit Rs. 3,000/- towards the expenses of defence witnesses. Second relates to the conclusion that the prayer to recall P.Ws 2 and 4 for further cross-examination did not merit consideration.
2. A brief reference to the background facts is necessary.
Petitioner, one of the two accused in T.R. No. 20 of 1987 pending before the learned Special Judge, Bhubenswar, filed an application to recall P.Ws 2 and 4 for further cross-examination. The prayer was rejected on the ground that these witnesses have been cross-examined at length since 1992.It was observed that the purpose of filing the petition was to prolong proceeding, though Court had directed for expeditious disposal of the case, another application was filed praying for time to aduce defence evidence. Prayer for issue of Summons to defence witnesses was also made. The prayer was accepted, but a direction was given that a sum of Rs.3,000/- was to be deposited by the petitioner towards expences of those witnesses.
3. The learned counsel for petitioner submitted that further cross-examination was necessary in respect of P.W. 4 because in his evidence he has stated that the accused petitioner was directed to receive charge of accuntant from 31-3-1985. The letter of the bank dated 20-3-1981 shows that the accused was asked to take over charge with effect from 31-3-1981. In view of said documents the statement of P.W.4 was apprently a mistake of fact, and the therefore, further cross-examination of P.w. 4 was necessary. It was further stated that certain documents were required to be adduced in evidence, and the petitioner had filed an application in that regard. Therefore, P.W. 2 and 4 were required to be cross-examined further. It is submitted by the learned counsel for opposite party No. 1 that details were wanting in the petition, and the aspecets now pointed out were not urged earlieff, and therefore, the learned Special Judge was justified in refusing to accept the prayer.
4. So far as P.W. 4 is concerned, I find that specific reasons was given as to why further cross- examination was necessary. I would have accepted the prayer in respect of discrepancy in the date only. The learned counsel for petitioner states that further cross-examination was necessary on other aspects and he would file a fresh petition indicating the details. If it is so done, the learned Special Judge shall consider the same. If the finds that other aspects are relevant, he shall permit cross-examination on these aspects. Otherwise, he shall permit cross- examination with respect to discrepancy of the date. So far as P.W. 2 is concerned, the learned counsel for petitioner states that a petition containing details and the aspects on which further cross-examination would be necessary shall be filed. If such an application is filed, same shall be considered on its own merits.
5. So far as the direction for deposit of Rupees 3,000/- towards the expenses of defence witnesses is concerned, it is the case of the petitioner the direction is against the sprit of Section 243(3) of the Code. According to the learned counsel for opposite party no. I the direction is in order, petitioner was required to bear to expenses as he wanted to examine witnesses in support of his ease.
6. For resolution of the controversy, a look at the provisions of Section 243 (2) and (3). which are relevant, is necessary. They reads as follows:
" 243. Evidence for defence. (1) xxx xxx (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any documents or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vaxation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing Provided that, when the accused has cross-examined or had the opportunity of cross-examination any witness before entering on his defence, the attandance of such witness shall not be compelled this Section, unless the Magistrate is satisfied that it is neccssary for the ends for justice.
(3). The Magistrate may, before summoning any witness on in application under Sub-section (2). require that the reasonable expenses, incurred by the witness in attending for the purposes of the trial be deposited in Court."
Section 243 deals with evidence for defence. Sub-section (2) provides for issue of processes for compelling attendance of witnesses cited by the accused for the purpose of examination or cross- examination or the production of any document. It applies after an accused has entered upon his defence, and it is intended to give an accused person opportunity, which the further progress of the case may have justified for the attendance of a particular witness cither for purpose of examination as a witness for the defence or for purpose of cross-examination as a witness already examined for the prosecution, butt the necessity for whose further attendance was not apparent at the lime of the applicability of Section 242(3) corresponding to Section 251A(7) of the Code of Criminal procedure. 1898 (referred to hereinafter as the old Code). Section 243 leys down the procedure for issue of process for compelling the production of evidence at the instance of the accused for the purpose of his defence. The Magistrate has a duty to issue process to compel the attendance of witnesses named by the accused except where the Magistrate considery that the object for asking for such process is to cause vaxalion. delay or to defeat the ends of justice. The language of this Sub-section is imperative and the Court has no discretion to refuse to issue process to compel the attendance of any witness cited by the acccused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which are specified in the Section and which it is bound to record. The decisive ground under the section is that before a Magistrate refuses to summon a witness, he should ascertain from the accused briefly the substance of the witness's or the point to prove which he is being summoned, and then if he comes to the conclusion that this witness is being summoned for the purpose of vaxation or delay or for defeating the ends of justice he is entitled after, giving his ground in writing, to refuse to issue process.
7. Sub-section (3) of Section 243 deals with deposit of expenses. The Magistrate has a discretion to pass an order under this sub-section. The discretion is subject to Section 312 of the Code or any rules by the State Government under it. There is no provision in the Code preventing the Court from summoning the defence witnesses at the expenses of Slate. Under Sub-section (3) of Section 243. the Magistrate has the power to call upon the accused to deposit reasonable expenses for summoning a particular witness, but that discretion has to be exercised judiciously and the Magistrate must indicate reasons for the same. The Magistrate has a discretion under Sub-section (3) either to direct the accused person to pay the expenses of the witnesses or else to summon them at the expenses of the State. The Orissa Criminal court witnesses (Payment Expenses Rules. 1963 ('in short, the "Rules') framed under the old Code 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 Rules continue to be applicable after enactment of the Code. In warrant cases usual rule is that the costs of causing the attendance of an accused person's witnesses are usually before by the State. Adequate reasons must be assigned for a departure from this usual rule. The Magistrate must record his reasons for departing from the usual practice. Since the Magistrate is required to exercise discration, same should be exercised judicioulsly.
8. 'Discration' means use of private and independent thought. When anything is left to be done according to one's discreting the law intends it to be done with sound discretion and according to law. Discretion is discerning between right and wrong. and one who has power to act at discretion is bound by the rule of reason. Discretion must not be arbitrary. The very term itselff stands unsupported by circumstances. imports the exercise of judgement, wisdom and skill as contradistinguished from unthinking fully, heady violence or rash injustice. When applied to a Court of Justice, it means sound discretion guided by law. It must be governed by rule, not by hummour: it must not be arbitrary, vague and fanciful, but legal and regular. Discretion must be exercised honestly and in the sprit of the statute. It is the power given by a statute to make choice among competing considerations. It implies power to chose between alternative causes of action. It is not undefined and vagrant. It is canalised within banks that keep it from overflowing.
9. The learned Special Judge has not indicated any reason while directing the accused-petitioner to make deposit. The desirability of making such direction in the background of his capacity to pay. his means to do so, and such relevant facters do not appear to have been considered. He shall, therfore. consider the matter afresh and pass appropriate orders.
The revision application is accordingly disposed of.