Full Judgment
Surinder Singh, J.
1. In this petition, the petitioner has called in question the order dated 16-1-2006 passed by learned Special Judge, Hamirpur whereby he was directed to deposit the expenses of the witnesses to be summoned by him.
2. The factual matrix of the case is that the petitioner along with two others, was being tried for the offences under Sections 468, 471, 420 and 120-B of the Indian Penal Code and Section 13(1)(d) of the Prevention of Corruption Act. After the closer of the prosecution evidence, the petitioner and the other co-accused were examined by the learned special Judge under Section 313 of the Code of Criminal Procedure. The co-accused of the petitioner stated that they would not produce any evidence in defense whereas, the petitioner cited large number of witnesses and also wanted to examine and cross-examine the then Chief Minister, Director General of Police, Principal Secretary to the Government of Himachal Pradesh and many other officers/official witnesses. After examining the rival contentions and keeping in view the nature of the charges of corruption against the petitioner vide order dated 16-1-2006 the petitioner was permitted by the learned Special Judge to examine the witnesses cited by him along with the record 'subject to the payment of road and diet money' to be deposited within one week whereafter, the defense witnesses were ordered to be summoned for the different dates in seriatim, which has been assailed in this petition.
3. Vide order dated 6.2.2006, this Court ordered that the witnesses named in the list be summoned subject to the condition that in case the order is upheld, the petitioner shall pay such' amount as may be calculated according to the prescribed scale.
4. I have heard learned Counsel for the parties and have examined the matter in the light of the submissions made.
5. The Code of Criminal Procedure, hereinafter referred to as 'Code' provides a complete procedure for conducting the criminal trial.
6. The offences for which the petitioner was facing the trial is a warrant case, instituted on a police report. Chapter-XIX deals with the procedure for trial of such cases. Section 243 falls under Chapter-XIX and it reads as under:
243. Evidence of defence.- (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.
(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 witnesses for the purpose of examination or cross-examination, or the production of any document 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 vexation 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-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this Section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an 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.
(Emphasis mine)
7. Sub-section (2) of Section 243 above refers to a stage when the prosecution has closed its evidence and the accused has entered upon his defence. If the accused asks for any process to compel the attendance or for 'cross-examination' of any prosecution witness, it shall be granted unless the Magistrate thinks that the object is vexation or delay. The Section is imperative. Magistrate has no discretion to refuse the process to any witness unless he considers that it should be refused on the ground of vexation or delay, thus he is bound to record reasons for such refusal.
8. Sub-section (3) of Section 243 is an enabling provision and in proper cases it may be dispensed with. The words 'may require' in this Section means if the Court is satisfied that the accused has no means or capacity to pay, the Court has discretion to dispense with payment of expenses for the ends of justice. The discretion given under this sub-section is subject to Section 312 under Chapter-XXIV of the Code, which says about payment of reasonable expenses of any complainant or witness attending for the purpose of enquiry, trial or other proceedings before a criminal Court under the Code, on the part of government, subject to the rules made by the State Government. Further Section 243(3) also gives the discretion to the Magistrate to ask an accused to pay reasonable expenses likely to be incurred by the witness in attending the Court but such discretion has to be exercised judiciously and reasonably. The Magistrate must specify some reasons why an accused has been asked to deposit the amount. The Magistrate cannot ask the accused to deposit the amount in a routine manner as held by this Court, in Surinder Kumar v. State 1982 Cri. L.J. 548 (HP).
9. In the instant case the petitioner is a retiree and facing the serious charges of corruption, the learned Special Judge has not given any reason as to why the accused should deposit the costs.
10. Therefore, the impugned order to the extent depositing the road and diet/cost of the witnesses is unsustainable and is thus quashed and set aside.