1. In Case No. 389 of 1954 pending in the court of the City Magistrate, Ajmer, State v. Abdul Rahman Under Section 211, I.P.C., the learned Counsel for the accused on 21-12-1953 raised the point of sanction. 8-1-1954 was fixed for arguments. On that date, certain original applications were not available. Finally on 2-3-1954 the accused wanted to file an affidavit that he had lodged a certain complaint in the court of the Additional City Magistrate. Finally 12-6-1954 was fixed for arguments, but on that date the learned Counsel for the accused was required to lead evidence to show that the original representation is lost before ho could be allowed to produce secondary evidence.
On 3-7-1954 the learned Counsel for the accused raised the question that these witnesses should be called Under Section 540, Criminal P. C. This the learned Honorary Magistrate declined to do and gave the accused the alternative of either having summons issued on depositing the necessary diet money or bringing the witnesses along with him. Against that order, Abdul Rahman Khan, the accused, filed an application in revision before the Sessions Judge, but the revision was dismissed. Now he has come up in revision to this Court. I have heard the learned Counsel for the applicant.
2. I see no substance in this revision. The question whether the prosecution was defective for want; of proper sanction is a part of the accused's defence and should, in my opinion, not have been permitted to be argued as a preliminary contention in the case. The prosecution should have been asked to lead evidence and when the accused entered on his defence, the question of sanction being necessary should also have been considered.
Under Section 257, Criminal P. C, the' learned Magistrate had jurisdiction to direct the deposit of reasonable expenses of witnesses before issuing summons. I see no warrant for the contention that the witnesses should have been summoned Under Section 540, Criminal P. C.
I also see no justification for any grievance against the learned Magistrate's order that reasonable expenses of these witnesses who are actually summoned to prove the accused's defence, should first be deposited if the accused wanted issue of process for their attendance. The learned Counsel has referred me to - 'Abdul Hafeez v. Crown. 1943 AMLJ 16 (A). That ruling does not support the contention of the learned Counsel. The passage relied upon reads:
As regards the second class the expenses of which are to be defrayed by the accused it is nowhere as stated that any reasons for the deposit of their expenses should be set out in writing by the magistrate concerned but the discretion given to the magistrate in this connection is of course to be exercised judicially.
3. In the particular facts of the case, I do not see any reason for holding that the learned Magistrate has not exercised the discretion judicially. In fact, no argument has been addressed to me on that point. The learned Counsel has confined himself to the contention that normally the cost of all defence witnesses should be paid by the State. That would mean repeal of S.' 257(2), Criminal P. C. I am not prepared to subscribe to that view. In my opinion, the learned Magistrate trying a case has a discretion to direct the deposit of the necessary reasonable expenses and in this case the learned Magistrate does not appear to have exercised his discretion in an incorrect manner.
4. No other argument has been pressed before me.
5. I, therefore, see no force in this revision application and dismiss.