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Andhra Pradesh High Court
Judges : PUNNAIAH
Ch.Venkateswar Rao - Appellant
Versus
State OF A.P. - Respondent
Cr. M. P. 872/78
Decided On : 08-21-78
Advocates Appeared :
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Held: The right requiring the summoning of the witnesses is a right given to the accused after the charge has been framed against him and has entered upon his defence. Where the accused exercises such a right, the Court is empowered to summon the witnesses with or without requiring the deposit of any reasonable expenses for the summoning of these witnesses. When the Court is satisfied with the genuineness and the bona fides of the petition for the summoning of the witnesses and when the court did not express its opinion that the petition is intended to delay or defeat the ends of justice, the court ought to have felt it necessary to issue summonses at the expense of the State to the defence witnesses mentioned in the petition and such act of the court will be appreciated as one intended to promote the ends of justice, but not to defeat the ends of justice. Courts are concerned with the ends of justice. Whatever steps that are necessary in this direction, the court should not hesitate to pursue or follow. There is no provision in the Code of Criminal Procedure preventing the court from summoning the defence witnesses at the expense of the State especially when the accused has no means or capacity to summon the witnesses who are very material or relevant in support of his case. It is true sub-section (3) of Section 243 Cr. P.C. requires the Magistrate that reasonable expenses incurred by the witnesses in attending for the purpose of trial be deposited in the Court. But that can be done only in case where the accused has capacity or means to pay the expenses. It is pertinent to note the words used in sub-section 3 i.e. "may require". It means, the court has discretion and the power to exonerate the accused from paying the reasonable expenses to be incurred by the witnesses in attending for the purpose of trial, if the Court is satisfied that the accused has no means or capacity to pay such expenses. The Court has not recorded in its order that the accused has means or capacity to pay the expenses required in this regard. When the court has not material to say that the accused has means or capacity to pay the expenses, it ought to have granted the prayer of the accused and issued summons without insisting upon the accused to deposit the reasonable expenses.
Crl. M. P. dismissed.
( 2 ) PREVIOUS to this petition, the petitioner filed Crl. M. P. No. 156/78 when he enterfd upon the defence after the prosecution evidence was closed. In that pelition he requested the Court to issue summons for the attendance of the 13 persons as defence witnesses mentioned in his petition. The learned judge ordered for the issuance of summons on the condi ion of the petitioner depositing probable T. A. and D. A. permissiabie to the witnesses under the rules within one week. Then the petitioner riled the pelition Cr. M P. No. 165/1978 explaining the pecuniary circumstances which prevented him from depositing the amount directed by the Court as per rhe orders mentioned above. In explaining the pecuniary circumstances under which he was placed, he submitted that he is being paid a meagre subsistence allowance of rs. 200/- per month which is hardly sufficient to meet even the necessities of his family consisting of himself, his wife and tour children and eversince his suspension, he shifted his family to his native place Koduru one of the worst affected villages due to the recent cyclone in Divi Taluk. He also submitted that due to suspension, education of his children was adversely aftected and he was not able to prosecute their studies. He also submitted that his wife is a sickly lady and her eyes were aitected requiring medical treatment which he could not afford in the present days of misery. He, therefore, submitted that he is unable to deposit the expenses of the defence witnesses not only within the time specified in the order, but also he has no means nor capacity whatever to comply with the directions of the Court. He prayed the Court to issue summons to the witnesses without insisting upon the condition to deposit their expenses or else he will suffer irreparable loss. But the Court declined to modify the previous order and issue summons to the witnesses without insisting upon the condition to deposit their expenses. The order is to the following effect;-"heard. I do not see any reasons to review the order made by me earlier directing the accused to pay T. A. and D. A. for the defence witnesses cited by him. The petition is dismissed". The order requiring the petitioner to deposit the amount" to be paid towards t. A. and D. A. for the defence witnesses and the order dismissing the petition cr. M. P. No. 165/1978 are sought to be quashed under Section 482 Cr. P. C.
( 3 ) SRI Bali Reddy, the learned counsel for the petitioner, contends that while the Court was satisfied with the need to issue summons for the attendance of the defence witnesses, as the evidence of the defence witnesses on which the accused relied appears to be necessary and the petition is not thus vexatious, the Court ought to have appreciated the pecuniary circumstances under which the accused was placed and ought to have found that the accused has no means or capacity to pay the expenses as directed by the Court for summoning the defence witnesses. He also contends that if the witnesses sought to be examined by him cannot be summoned, he would he denied his valuable right to examine defence witnesses in support of his case. He further contends that sub-section (2) of section 243 Cr. P. C, gives the right to the Court to issue process for the attendance of defence witnesses unless the court 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 jusiice and such ground shall be recorded by him in writing. As the learned Special Judge has not refused the petition and as he did not feel that the petition was vexatious or intended to delay or defeat the ends of justice and in fact he ordered for the issuance of summons, it is clear that he appreciated the bona fides and the genuinenes of the petition. But when he ins
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