The Magistrate has the discretion to require the accused to deposit the reasonable expenses of the witnesses before issuing summons to them, but must give reasons for exercising this discretion.

( 1 ) THE petitioner is an accused in a case under sections 147 and 325 Indian Penal Code pending in the Court of the Judicial Magistrate 1st Class, Delhi. After the close of the prosecution evidence, the petitioner was examined under section 342 Cr. P. C. and when asked whether he wished to examine any defence witnesses, he filed a list of 11 witnesses and wanted them to be summoned. The learned Magistrate passed the fallowing orders :--

"the witnesses be summoned on payment of process fee and diet money. Rs. 175. 00 as diet money be deposited. "

THE petitioner did not deposit the process fee and the diet money as directed by the learned Magistrate, but filed a revision petition in the Court of Session contending that no reasons were assigned by the learned Magistrate for requiring him to deposit the diet money of the witnesses and that the learned Magistrate ought to have summoned the defence witnesses at Government expense. The learned Additional Session Judge accepted this contention and has submitted a report to this Court with a recommendation that the order of the learned Magistrate directing the petitioner to deposit the process fee and diet money before summoning the defence witnesses be quashed and that the learned Magistrate be directed to summon the defence witnesses at Government expense.

( 2 ) THE petitioner is being tried under the procedure prescribed by section 251-A Cr. P. C. as the case against the petitioner has been instituted on a police report and the case is triabe under the warrant-Dcases procedure. Sub-sections (9) and (10) of section 251-A Cr. P. C. provide for the summoning of the defence witnesses. Sub-section (9) reads as follow ;-

"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 document or other thing, the Magistrate shall issue such process unless he considers that suchpplication should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice. Such ground shall be recorded by him in writing. "the proviso to sub-section (9) is not relevant. Sub section (10) reads as follows :-

"the Magistrate may, before summoning any witness on such appli- cation under sub-section (9) require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court. "under sub-section (9), therefore, the Court is bound to issue summons to the defence witnesses, unless he considers that the application for summoning the defence witnesses is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the learned Magistrate has not refused the application of the petitioner to summon defence witnesses. He has only rected the petitioner to deposit the process fee and the diet money before summoning the witnesses. Sub-section (10) gives a discretion to the Magistrate to require the petitioner to deposit the reasonable expenses which would be incurred by the witnesses in attending the Court before issueing summon to them. It is now well-settled that wherever a discretion is given to the Court, such a discretion should be exercised judiciously and not arbitrarily. If follows that the Court has to give reasons for the exercise of his discretion either in favour of or against the accused.

( 3 ) THE provisions of sub-sections (9) and (10) of section 251-A Cr. P. C. have to be read with section 544/cr. P. C. which reads as follows :-

"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 proceedings before such Court under this Code. "

REFERENCE in this section to witness is not confined t