1. This is a revision against an interlocutory order passed by a Magistrate, First Class, Puri, in a case under Section 420, I. P. C. pending in his Court. The case started sometime in 1952 and on 1-7-1956 the prosecution evidence was closed. Then the Magistrate adjourned the case to 6-8-1S56 for examination of the accused persons and further directed that the defence witnesses should be summoned at the cost of the accused persons. Petitioners Raghubir Dayal Saxena and Prahlad Narain filed a list of 50 witnesses to be examined on their behalf and petitioner Brij Narain filed a list of 15 witnesses to be examined on his behalf.
Most of the witnesses mentioned in two lists are Government servants serving under various Governments all over Inida, including some Officers of the Union Government and merchants residing in several parts of the country. When the learned Magistrate directed that summons should issue only on payment of costs by the petitioners, they filed a petition stating that summons should issue at the cost of the State. The learned Magistrate heard this matter on 8-8-1956 and observed that as the offence under Section 420 I. P. C. was bailable, the defence witnesses should be summoned only at the cost of the accused persons. This revision is filed against this order of the learned Magistrate.
2. The relevant provisions are Sections 257 and 544 of the Criminal P. C. Doubtless Sub-section (2) of Section 257 authorises a Magistrate before summoning any witnesses, on the application of the accused, to require that his reasonable expenses incurred in attending for the purposes of the trial should be deposited in Court.
This may support the view that if the accused persons apply for summoning certain witnesses on their behalf the Magistrate is competent to direct them to defray the reasonable expenses of such witnesses. Section 544, however, says that 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. The expression ''witness' occurring in this Section may also include a defence witness.
But my attention has not been drawn to any rule made by the State Govt. in pursuance of Section 544 of the Criminal P. C. The learned Magistrate's observation that as the offence against the accused persons is bailable, the defence witnesses should be summoned at the expense of the accused persons does not seem to be based on any such rule made by the State Government.
In the absence of any rule, the Magistrate has discretion, under Sub-section (2) of Section 267, either to direct the accused persons to pay the expenses of the witnesses, or else to summon them at the expense of the State. In Debi Singh v. Emperor 24 Cri LJ 831 : AIR 1924 Fat 142 (A) it was held that the inability or even the refusal of an accused person to pay the costs of the witnesses would not, in a warrant case, be an adequate ground for refusing to summon a witness under Section 257(1) of the Criminal P. C. An offence under Section 420, I. P. C. being cognizable and triable as a warrant case, may well come within the scope of the principle laid down in the aforesaid decision.
3. But the Magistrate appears to have failed to scrutinise the lists of defence witnesses carefully and decide whether it is necessary for the ends of justice that all of them should be summoned. He should, Under Sub-section (1) of Section 257 decide whether the long lists have been riled for the purpose of vexatious delay or for defeating the ends of justice. After such scrutiny he may come to a decision as to whether, out of the lists filed by the accused persons, all or some of them alone need be examined for the ends of justice, and then decide whether their expenses should be borne by the accused person or by the State bearing in mind the fact that this is a warrant ease. The order of the Magistrate, as it stands, cannot be supported because it does not show that he applied his mind to the question as to whether all the defence witnesses cited in the lists should be summoned for the ends of justice. Moreover, as I have already pointed out, the reason given for asking the accused persons to pay the cost of the witnesses is not supported by any rule framed by the State Government under Section 544, Criminal P. C.
4. The revision is disposed of accordingly. Let the records be sent back at once, to the Magistrate.