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MADHYA PRADESH HIGH COURT
R. C. MISHRA, J.
Nandlal and Ors.
Versus
State of Maharashtra.
C. R. No. 767 of 2007
Decided On : 10-3 2008.
Court Discretion - Payment of Defence Witnesses - Sections 233, 243 of the Code of Criminal Procedure - Summary of Acts and Sections: The court discussed the provisions of Sections 233 and 243 of the Code of Criminal Procedure and the corresponding rule 558. It highlighted the discretionary power of the court to order payment of expenses of defence witnesses and emphasized the need for judicious exercise of this discretion. The court also considered the relevance of the financial status of the accused in deciding the liability for bearing the expenses of the witnesses.
Fact of the Case:
The petitioners were prosecuted for serious offences and sought to examine 9 witnesses, including medical experts, in their defense. The trial judge rejected their prayer to require the State Government to meet the expenses of the witnesses. The petitioners challenged the legality and correctness of the order.
Finding of the Court:
The court held that the trial judge's reasons for rejecting the petitioners' prayer were not fully sustainable in law. However, the ultimate decline to order the State Government to bear the expenses of the witnesses was justified based on the well-settled legal position and the facts and circumstances of the case.
Issues: The main issue was whether the trial judge had the discretion to require the accused to bear the expenses of the defence witnesses, especially in light of the provisions of Sections 233 and 243 of the Code of Criminal Procedure.
Ratio Decidendi: The court emphasized the discretionary power of the court to order payment of expenses of defence witnesses and the need for judicious exercise of this discretion. It also considered the relevance of the financial status of the accused in deciding the liability for bearing the expenses of the witnesses.
Final Decision: The revision was dismissed, and the impugned order did not require any interference under the revisional jurisdiction.
"whether the Court of Session has any discretion in the matter of payment, on the part of the Government, of the expenses of defence witnesses"
2. The petitioners stand prosecuted for the offences punishable under Sections 376(2)(g), 302 and 201 of the I. P. C. allegedly committed at Nagpur (Maharashtra). However, by virtue of order dated 15-7-1996 passed by the Supreme Court in S. L. P. No. 1240/96, the case was transferred for trial to the Court of Session at Chhindwara (M. P.). In defence, the petitioners proposed to examine as many as 9 witnesses including (i) Dr. R. K. Wright, a resident of Turteltown, USA (ii) Dr. Anil Agrawal, Professor, Maulana Azad Medical College, New Delhi and (iii) Mr. P. K. Satyanathan, Govt. Pleader, Nagpur. However, the learned trial Judge rejected their prayer in respect of these three witnesses for a variety of reasons. Being aggrieved, the petitioners challenged legality and correctness of the impugned order by filing a revision before this Court. It was also allowed vide order dated 26-11-2006 passed in Cr. Revision No. 1568/06 reported as 2007 (1) MPLJ 84. Accordingly, the trial Court was directed to summon all the three witnesses named above (hereinafter referred to as 'the witnesses') in accordance with law. Thereafter, the petitioners made an oral prayer before the trial Court for a direction requiring the State Government to meet expenses of the witnesses. The request was vehemently opposed by the prosecution. After hearing arguments, the learned trial Judge, while drawing an analogy from Section 243(3) of the Code, though applicable to trial of warrant cases, and observing that the petitioners were in a position to incur expenses of the witnesses, proceeded to reject their prayer.
3. Legality, propriety and correctness of the order saddling the petitioners, who are accused of serious offences including one entailing capital punishment with the liability, has been assailed on various grounds.
4. The main contention canvassed by the learned counsel for the petitioners is focused at conspicuous distinction between the provisions of Sections 233 and 243 of the Code. He is of the view that once it was held by this Court that none of the witnesses was being summoned for the purpose of vexation or delay or for defeating the ends of justice, the learned trial Judge was bound to require the State Government to bear their expenses. To buttress the contention, reference has been made to the following observations made by Division Bench of Kerala High Court, in K. V. Baby v. Food Inspector, Wadakkanchery Circle, 1994 Cri LJ 3421.
"In the absence of any rule made by the State Government, the Magistrate has discretion under sub-section (3) of Section 243 and sub-section (3) of Section 254 either to direct the accused persons, to pay the expenses of the witness, or else to summon them at the expense of the State. But in respect of trial before a Court of Session, under Section 233 of the Code of Criminal Procedure, 1973, there is no such corresponding provision like Section 243(3) and Section 254(3) requiring the reasonable expenses of the witnesses incurred in attending the Court for the purpose of trial to be deposited in Court. Such a direction to deposit the batta necessary for the witnesses is conspicuously absent in respect of Session trial before a Court of Session. Even though under Section 216 of the Code of Criminal Procedure, 1898, there is a provision empowering the Court requiring such sum to be deposited as the Magistrate thinks it necessary to defray the expenses of obtaining the attendance of the witnesses and all the other proper expenses, the substance of the said Section was not incorporated in the new amended Section 233 of the Code of Criminal Procedure, 1973. Thus, the inte
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