Back
High Court Of Madhya Pradesh
P. K. Tare and Shiv Dayal, JJ.
KODU, PANCHHI DHIMAR - Appellant
Versus
BANMALI, MOHAN KEWAT, JABALPUR - Respondents
Criminal Appeal 530 Of 1965
Decided On : 02/17/1968
After a charge was framed, the trial Court could not 'dismiss the complaint' under section 204 (5) of the Code. The order amounts to acquittal. [Para 3
(2) Criminal P.C., 1898 - S. 417 (3) - charge framed - trial Court ordering dismissal of complaint - order amounts to acquittal - appeal competent.
Where after framing of the charge, the trial Court dismisses the complaint, the order amounts to acquittal and an appeal is competent. [Para 3
(3) Criminal P.C. 1898 - S. 256 - Rules and Orders (Criminal) - R. 546 - witness recalled for cross-examination - no process fee can be charged.
Rule 546 of the Rules and Orders (Criminal) framed by the High Court lays down that no process fee is to be charged for the process to compel the appearance of a witness recalled for cross-examination under section 256 of the Code [Para 4
(4) Words and Phrases - Talbana - means process fee - does not include diet money.
The word 'Talbana', in its ordinary connotation, means process fee. It does not mean diet money. [Para 5
(5) Criminal P.C., 1898 - S. 256 - right of the accused to call prosecution witness after charge for cross-examination - nature and extent of the right - accused cannot be asked to pay expenses.
It is the right of the accused to have witnesses for the prosecution recalled and cross-examined after charge and it is not necessary for him to show a reasonable ground for exercising that right. It is obligatory on the Magistrate to recall the witnesses at the request of the accused. The Magistrate has no discretion to refuse to recall prosecution witnesses for cross-examination even if the witnesses have been cross-examined before the charge was framed. AIR 1949 All. 428 referred to.
Section 256 does not cast a duty of recalling the witnesses on the complainant. It is the duty of the Magistrate to recall them. Therefore, the mere fact that the complainant did not take steps in that matter, does not absolve the Magistrate from his duty to recall the witnesses. It is also patent enough that section 256 of the Code, while giving an absolute right to the accused to recall prosecution witnesses, without assigning any cause for the same, does not make him liable to pay expenses of the prosecution witnesses. [Para 6
(6) Criminal P.C., 1898 - S. 256 - accused charged of adultery under section 497 - expenses of the witness called for cross-examination after the charge-the complainant should pay-Rules and Orders (Criminal) - R. 558 (a) (ii).
Where a charge of adultery punishable under section 497, Penal Code, has been framed against the accused, the offence being bail-able and non-cognizable, the offence has no direct nexus with public interest. The question whether the Government should pay the travelling expenses and subsisting allowance of prosecution witnesses, who are to be summoned under section 256, Cr. P C., is within Rule 558 (a) (ii) of the Rules and Orders (Criminal). The complainant should bear the expense, of the witnesses recalled. 39 MPLC 94, 5 MPLC 7, 1953 M.W.N. 1216, 1947 NLJN 7 referred to. [Para 11
(7) Criminal P.C., 1898 - S. 544 - Rules and Orders (Criminal) - R. 558 - expenses of witnesses recalled for cross-examination under section 256 - expenses when may be paid by the Government.
Rule 558 of the Rules and Orders (Criminal) is contained in Chapter 23 under the heading "Expenses of Witnesses" and has been made under section 544 of the Code of Criminal Procedure. By virtue of this Rule : (1) In all Challan cases Government has to pay expenses of the complainant and other witnesses, whether for prosecution or the defence (2). When a witness is summoned or recalled by the Court of its own motion under section 540. Criminal Procedure Code, the Government has to pay his expenses. (3) In a non-bail-able case, even if cognizance is taken on a complaint, the Government has to pay expenses of the complainant and witnesses whether for the prosecution or the defence. (4) Now remains a bail-able case cognizance of which is taken on a private complaint. This rule does not specifically lay down who is to pay the expenses of witnesses. Such a case comes within the purview of clause (a) (ii) of this Rule, and the matter has been left in the discretion of the Presiding Officer. In exercising that discretion, he has to consider whether such payment would be directly in furtherance of the public interest. The Rule has laid down the principle and criterion on which judicial discretion has to be exercised.
( 1 ) THIS is an appeal against acquittal on special leave granted under Section 417 (3), Criminal Procedure Code. The appellant filed a complaint under Sections 497/498/109, Penal Code, against the respondent in the Court of the Magistrate first Class, Katni. It is alleged in the complaint that Mst. Itiya is the married wife of the complainant. Banmali, accused No. 1, has kept Mst. Itiya as his wife and he is committing adultery and is liable under Section 497/ 498, Penal Code. Mst. Charki, accused No. 2, is the mother of Mst. Itiya. She connived and abetted the offence under Sections 497 and 493, Penal Code.
( 2 ) AFTER recording prosecution evidence, the learned trial Magistrate, on 29th september 1964, framed a charge under Section 497, Penal Code, against banmali. The accused pleaded not guilty and desired that the prosecution witnesses be recalled for further cross-examination. The learned Magistrate directed that summons be issued on payment of "talbana". The 9th November 1964 was fixed for further cross-examination, Mst. Charki was discharged. The complainant submitted that he was not bound to pay "talbana". The learned magistrate held that the word "talbana" includes both process fee and diet money; that the complainant was bound to pay diet money; and that for non-compliance with his direction for payment of "talbana", the complaint was liable to be dismissed. Accordingly, he "dismissed" the complaint under Section 204 (3), criminal Procedure Code. This appeal is from that order.
( 3 ) THERE can be no doubt that the learned Magistrate was clearly wrong in using the expression "dismissal of complaint". A charge had been framed. His order amounts to acquittal. This appeal is, therefore, competent.
( 4 ) SO far as the process fee is concerned, the following provision, which is contained in Rule 546 of the Rules and Order (Criminal), framed by the High court, is quite clear. Clause (3) of this Rule reads thus:
"no fee shall be chargeable for any process to compel the appearance of a witness recalled for cross-examination under the provisions of Section 256 of the Code of Criminal Procedure".
Thus, the learned trial Magistrate was in error when, in his order dated 29th september 1964, he directed the complainant to pay process fee.
( 5 ) IN his order, dismissing the complaint, the learned Magistrate observed that he used the word "talbana" and that it includes both process fee and diet money. Here too, he is wrong. The word "talbana", in its ordinary connotation, means process fee. The learned Magistrate now interprets the word "talbana" as inclusive of diet money. May be that the learned Magistrate might be employing that expression in that sense but since he does not say in the order under appeal that that was the practice in that Court so that the counsel and the parties were acquainted with that expresssion as to include diet money as well, and since he does not refer to any provision where the word "talbana" has been used as to include subsistence allowance, the drastic action he took in "dismissing" the complaint cannot be justified or sustained. He could not abruptly terminate the trial on that account. Therefore, the order under appeal must be set aside.
( 6 ) THIS brings us to the question whether the complainant is bound to pay subsistence allowance of prosecution witnesses when they are recalled under section 256, Criminal Procedure Code, at the instance of the accused. Section 544, Criminal Procedure Code, enacts thus:
"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 purpose of any enquiry, trial or other proceeding before such Court under this Code".
This section invests the Magistrate with a discretion regarding payment, on the part of Government, of the expenses not only of a witness but even of the complaint. Firstly, this discretion
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
