Shiv Dayal, J.
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 must be exercised according to the rules, if any. made by the State Government. Secondly, this discretion, as any other, must be exercised judiciously. It is plain enough that 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. (See Saghir Uddin v. Mt. Munni, AIR 1949 All 428.
It is equally clear that Section 256, Criminal Procedure Code, does not cast the 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.
7. Now, therefore, the question boils down to this. Whether the subsistence allowance of the prosecution witnesses, who are recalled at the desire of the accused for further cross-examination after charge (i.e., under Section 256, Criminal Procedure Code) must be borne by the complainant or by the Government. Rule 558 of the aforesaid Rules and Orders provides as follows:
'558. Subject to the instructions hereinafter contained the criminal Courts are authorised to pay the expenses-
(a) of complainants and witnesses, whether for the prosecution or the defence-
(i) in cases prosecuted, instituted or carried on by, or under the orders of, or with the sanction of Government or any judge, magistrate or other public officer acting as such,
(ii) in cases in which the presiding officer considers such payment to bedirectly in furtherance of the public interest, and
(iii) in all non-bailable cases;
(b) of witnesses summoned or recalled by the presiding officer of his own motion under Section 540 of the Code of Criminal Procedure. ...'
This Rule, which is contained in Chapter 23, under the heading 'Expenses of Witnesses' has been made under Section 544, Criminal P. C. 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-bailable 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 bailable 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.
8. One of the well known theories ofpunishment is retributive theory. The State has taken upon itself to inflict appropriate punishment upon an offender instead of allowing the victim to take private vengeance in the form of tooth for tooth.
'The retributive theory is not, of course, the narrow theory of vengeance but rather the doctrine that the wrong done by the prisoner can be negated only by the infliction of the appropriate punishment'.
(Baton on Jurisprudence).
'Retributive punishment, in the only sense in which it is admissible in any rational system of administering justice, is that which serves for the satisfaction of that emotion of retributive indignation which in all healthy communities is stirred up by injustice. It gratifies the instinct of revenge or retaliation which exists not merely in the individual wronged, but also by way of sympathetic extension in the society at large. Although the system of private revenge has been suppressed, the emotions and instincts that lay at the root of it are still extant inhuman nature, and it is a distinct though subordinate function of criminal justice to afford them their legitimate satisfaction'.
In that broad sense, the State is always concerned in getting an offender punished. But in this rule, limitation is to be found in the expression 'directly in furtherance of public interest'. Emphasis is on the word 'directly'. To see whether it will be directly in furtherance of public interest, it may be said that, while exercising its discretion under Rule 558 of the Rules and Orders (Criminal), the Court may take into account whether the charge, which has been framed, is for a cognizable offence or a non-cognizable one.
9. In Birdhichand v. Lakhmichand, (1912) 8 Nag LR 65, the applicants were prosecuted for defamation. The Magistrate directed them to pay diet money to the complainant's witnesses, who were required for cross-examination. They preferred a revision. It was held by the Judicial Commissioner's Court that the order was illegal and was, therefore, set aside. In the course of the discussion, the following observation was made:
'There is nothing in Chapter XXI of the Code which enables the Magistrate to demand even from a complainant the expenses to be incurred by his witnesses, though such a power is conferred by Section 244 (3) where the case under trial is a summons case'.
Section 244 of the Code provides for taking evidence in the trial of a summons case. In our opinion, the above remark was obiter. Shri Baghel then relies on State v. Smt. Bilso, Criminal Revn. No. 123 of 1961, D/- 24-4-1961 1962 MP LJ (Notes) 36. There, the question was whether the complainant could be required to pay process fee. In that decision, the question about payment of subsistence allowance and travelling expenses was not considered. Similar is the decision in Amirthammal v. Ratnaswamy Padayachi, 1933 Mad WN 1266 and Crown v. Mst. Guni, 1947 Nag LJ (Notes) 7.
10. Shri Tamaskar, learned Deputy Government Advocate, places reliance on Vithi v. Tulsiram, ILR (1950) Nag 506: (AIR 1950 Nag 88). In our opinion, that case is not in point. All that is held there is that the payment in respect of diet money and travelling expenses of witnesses falls under the head 'other fees payable' mentioned in Section 204 (3), Criminal Procedure Code, so that in a private prosecution, the complainant is under legal obligation to pay process fees before summonses are issued to his witnesses and in default, the complaint is liable to be dismissed under Section 204 (3). The other case relied on by Shri Tamaskar is In re Vendanta, AIR 1950 Mad 283. But there the question was whether the Government should berequired to pay subsistence allowance of defence witnesses. It was held that the power given to the criminal Court under Section 544, Criminal Procedure Code, is discretionary. This case also is not in point.
11. The present case is one where the charge of adultery punishable under Section 497, Penal Code, has been framed against the accused. That offence is bailable and non-cognizable. In our opinion the offence of adultery has no direct nexus with public interest (See section 199, Criminal Procedure Code). In the light of what has been said above, the question whether the Government should pay the travelling expenses and subsistence allowance of prosecution witnesses, who are to be summoned under Section 256, Criminal Procedure Code, is within Rule 558 (a) (ii) of the Rules and Orders (Criminal), framed by the High Court for subordinate Courts. We are of the opinion that the complainant should bear the expenses of the witnesses to be recalled. Since the point was not before the trial Court in this light, ends of justice require that Shri Baghel's request to give the complainant a fresh opportunity to deposit the expenses should be allowed. We have already held that the learned Magistrate was in error in recording order of dismissal of the complaint.
12. The appeal is allowed. The orderof the trial Magistrate, dismissing thecomplaint, is set aside. The case shallgo back to the trial Court for recallingthe prosecution witnesses for furthercross-examination under Section 256, Criminal Procedure Code, if the complainant deposits the expenses within onemonth from today, and then to proceedfurther with the trial.