D.S. Dave, J.
1. This is an application in revision by the State against the order of the learned Seasions Judge, Jodhpur, dated 15-4-1957.
2. The facts giving rise to it are that one Abdul Aziz was challaned by the police for offences under Sections 231, 232, 234 and 235 I. P. C.
After preliminary enquiry, the City Magistrate, Jodhpur, committed him to the court of the Sessions Judge, Jodhpur, where the trial is proceeding. During the course of the trial, learned counsel for the accused requested the learned Sessions Judge to summon and examine the Deputy Bullion Registrar and Coin Expert, India Government Mint, Bombay. The application was contested by the Public Prosecutor on the ground that his statement which was recorded. in the committing magistrate's court under Section 510, Cr. P. C. could be admitted in evidence under Section 33 of the Evidence Act, that his report could also be used in evidence under Section 510 Cr. P. C. and it was not necessary to summon him. The learned Judge, however, held that Section 510 Cr. P. C., as it is amended now, gave a right to the accused to call the said witness in The court and, therefore, he allowed the request of the defence counsel on 8-3-57 and ordered summons to be issued to the said witness. In response to the summons issued by the court, the Master of the Mint wrote back saying that the Deputy Bullion Registrar and Coin Expert could not be spared due to urgent Government work and that his evidence could be recorded on commission as is usually done in all such cases. Thereafter, the learned Sessions Judge passed an order on 15-4-57 for issuing commission to examine the said witness, but at the same time, it was directed by him that the Government should pay the expenses of the counsel for the accused for going to and coming back from Bombay. It is against this part of the order that the present revision application has been filed.
3. Learned counsel for the accused has not cared to appear in this Court.
4. Learned Government Advocate has urged that there is no provision in the Criminal Procedure Code or in the Rules framed by this Court, whereby the learned Sessions Judge could direct the Government to pay the expenses of the counsel for the accused and that since this order is arbitrary and not warranted by any law, it should be set aside.
5. It appears from the order of the learned Sessions Judge that he was guided by considerations of sympathy for the accused in directing the Government to pay the expenses for his counsel, but he has not referred to any provision of law, whereby he had an authority to pass such an order. Learned Government Advocate is correct in saying that there is no provision in the Criminal Procedure Code whereby the order of the learned Sessions Judge can be justified. The usual procedure which is followed for the examination of witnesses on commission is that the court sends interrogatories to the commissioner. In the present case also, the proper course was for the Public Prosecutor to submit his interrogatories to the court and then the accused could also submit his cross-interrogatories.
Both of them should have been then sent to the commissioner and the witness could be examined by the commissioner on the basis of such interrogatories. It is not meant to say that the accused is debarred from going to the place where the witness is to be examined on commission. If he is on bail it is open to him to go there and cross-examine the witness personally if he so desires or he may send his counsel there or engage a counsel at that place for cross-examining the witness. There is, however, no provision whereby he can make a demand on the Government that he or his counsel should be given expenses for going to a particular place in order to cross-examine the witness whose statement has been ordered by the Court to be recorded on commission. In the absence of any such provision of law, the learned Sessions Judge had no authority to pass an order directing the Government to pay the expenses of the counsel for the accused and therefore his order cannot be maintained.
6. The revision application is allowed and the order of the learned Sessions Judge directing the Government to pay the expenses of the counsel for the accused is set aside.