1. The petitioner seeks for quashing the order passed by the Special Judge for SPE and ACB cases, Hyderabad in Cri. M, P. No. 165/1978 in C. C. No. 38/1975.
2. Previous to this petition, the petitioner filed Cri. M. P. No. 156/78 when he entered upon the defence after the prosecution evidence was closed. In that petition 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 condition of the petitioner depositing probable T. A. and D. A. permissible to the witnesses under the rules within one week. Then the (petitioner filed the petition Cri. M. P. No. 165/1978 explaining the pecuniary circumstances which prevented him from depositing the amount directed by the Court as per the 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 four children and ever since 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 affected and he was not able to prosecute their studies. He also submitted that his wife is a sickly lady and her eyes were affected 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 be 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 con-eiders 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. 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 genuineness of the petition. But when he insisted upon the payment of expenses for the issuance of summons in spite of the fact the petitioner explained the pecuniary circumstances by filing a separate petition with affidavit, the learned Judge has denied practically the right given to him to examine his witness in support of his case.
4. As against this contention, the learned Public Prosecutor relied upon the provisions of Sub-section (3) of Section 243 Cr.P.C. and contends that the Court before summoning any witnesses on an application under Sub-section (2) may require that the reasonable expenses incurred by the witness in attending for the purpose of the trial be deposited in Court and the Court therefore, is justified in following this provision and refused to accede to the request of the petitioner.
5. It is not in dispute that the pecuniary circumstances explained by the petitioner are miserable and hence it is impossible for the petitioner to pay the expenses for the issuance of summons for the attendance of his witnesses mentioned in his petition. The learned Public Prosecutor was not able to say that the petitioner has got means or capacity to pay the expenses for the issuance of summons. In such a case, what is to be done? When the petitioner has no capacity or means to pay the expenses, whatever time is granted in view of the woeful circumstances under which he was placed and if the witnesses cannot be summoned, he is denied the right given by the statute to summon his defence witnesses. The right requiring the summoning of the witnesses is a right given to the accused after a 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 those witnesses. When the Court is satisfied with the genuineness and the bone 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 summons 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 Cr.P.C. 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 expense incurred by the wit- nesses in attending for the purpose of trial be deposited in the Court, But that can be done only in cases 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 end the power to exonerate the accused from paying the reasonable expen-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 no 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 summonses without insisting upon the accused to deposit the reasonable expenses. As stated above, the accused is given the right to summon the witnesses in support of his defence and he is also given the right to request the Court to issue summonses for attendance of such witnesses and he is also given the right to insist upon the Court to issue summonses at the expense of the State when he has no means or capacity to pay reasonable expenses. If the summonses are not issued for the attendance of the witnesses, the accused will be put to much hardship and the right given by the statute becomes frustrated. Hence it is necessary to secure ends of justice that the Court should issue summonses without insisting upon the accused to pay the expenses. The decision in Jit Singh v. State lends support to the view which I have taken. The impugned orders are therefore, quashed. The learned special Judge is directed to issue summonses to the thirteen defence witnesses mentioned in the petition without insisting upon the accused to pay the expenses.
6. In the result, the petition is allowed. Petition allowed.