Krishna Kumar Pandey alias Kukku Pandey vs State of U.P.

Alok K. Singh, J.—Heard Sri D. S. Mishra, learned Counsel for the applicant, Sri Rajendra Kumar Dwivedi, learned A.G.A. and perused record.

By means of this petition under Sections 482, 483, 397(1) and 401, Cr. P.C. two order passed by the court below dated 27.5.2008 and 3.6.2008 have been challenged.

From the perusal of the first impugned order dated 27.5.2008 (Annexure-4) it transpires that in the murder trial pending before the court below for the last three years wherein prosecution evidence was about to conclude (S.T. No. 47/05 under Sections 147, 148, 302, 504, 506 and 120B, I.P.C.) and the last prosecution witness Gorakh Singh was in attendance on a particular date but in stead of cross-examining him an application was moved by the defence praying for adjournment for 3.6.2008 on the ground that counsel Sri Ved Prakash Pandey had some problem in his left leg while wife of another counsel Sri Vijay Bahadur Singh was not feeling well and, therefore, he has gone to Lucknow with her. The learned lower court after hearing arguments observed that there were other counsels also and the application for adjournment has been moved with a view to protract and prolong the hearing. Still keeping in view that both the advocates are practising in district Sultanpur, one last opportunity for cross-examination of witness Gorakh Singh was accorded on payment of Rs. 15,000 as cost to be deposited within two days in the treasury. It is submitted that the cost was deposited accordingly and on 3.6.2008 witness Gorakh Singh has also been cross-examined. Learned Counsel for the applicant submits that there is no specific provision in the entire Code of Criminal Procedure under which such cost could have been imposed. Be that as it may. But as per long established practice and also keeping in view the principles enunciated in the case of Salem Advocate Bar Association v. Union of India, and having regard to the facts and circumstances of a particular case if cost is imposed in the ends of justice, as in the instant case the same would be construed to have been done under the inherent powers of the Court for administering fair and speedy justice. However, such cost should be realistic, and as far as possible, the actual cost, which had to be incurred by the other party, where the adjournment being sought is found to be avoidable.

In respect of seeking an adjournment the learned Counsel for the applicant also placed reliance on the case of Rais Ahmad Vs. State of U.P. and Others, (before Hon''ble Mr. Justice S. Sagir Ahmad and Hon''ble Mr. Justice D. P. Wadhwa). This case pertains to practice and procedure in respect of the cases pending in the High Court and not in the District Courts. According to the facts of this case the learned Counsel had obtained permission of the Chief Justice under the High Court Rules for adjournment of his all cases pending in the High Court upto certain dates. Writ petition in question was, however, listed very next day and though the counsel sent an illness slip but that was not brought to the notice of the Court by the Bench Secretary. Consequently, the writ petition was dismissed on merits. The Hon''ble Apex Court held that in the case not having been adjourned, the result was serious miscarriage of justice and the High Court erred in not allowing application for recall of the order of dismissal. It was also observed that the High Court was duty bound to give effect to an order of Hon''ble the Chief Justice allowing the application seeking adjournment by not listing the case of that counsel concerned before the Court. However, if such a case is listed by mistake, the litigant or counsel cannot be made to suffer. It was also observed that there is special significance of illness slip as per long traditions which bind in relation of mutual trust between Judiciary and Bar. But this case law deals with only the High Court Rules, and the established practice and procedure followed in the High Court where the cases are listed by Registry. But these rules, i.e., the Allahabad High Court Rules, 1952 have no application in the subordinate courts. There is also no such established practice or procedure of illness slip there. Moreover in the lower court the cases are listed by the Presiding Officer of the Court itself and not by any Registry. Moreover, the facts and circumstances of the case in hand are different. Further in the aforesaid case Hon''ble Chief Justice had already allowed the application of a particular counsel for a particular period and therefore his case should not have been listed. But by mistake this case was listed and the illness slip given by the counsel, was also not brought to the notice of the Court by the Bench Secretary. Whereas in the case in hand, there were no such facts and circumstances and therefore this case law is not applicable in the present case.

Therefore, it can be concluded that an adjournment is not a right of a party. It has to be on showing special and extraordinary circumstances and cannot be a routine at least in the cases pending before the lower courts.

However, in view of the entire facts and circumstances of the present case as mentioned hereinabove in para 3 of this judgment the imposition of amount of Rs. 15,000 as costs appears to be exorbitant. Therefore, by invoking inherent powers of this Court, the aforesaid impugned order so far it relates to imposition of cost, is partly modified and the cost is reduced to a notional amount of Rs. 1,000. The remaining amount of Rs. 14,000 shall be returned to the depositor (accused). As the cross-examination of witness Gorakh Singh has already been conducted the remaining part of the order shall remain intact and no further order is required in the matter.

As far as the second impugned order, i.e., dated 3.6.2008 is concerned learned Counsel for the applicant submits that ignoring the provisions of Section 312, Cr. P.C. the learned court below has directed the defence to deposit an amount of Rs. 4,000 as expenses in respect of ballistic expert who was to be examined as defence witness on the request of defence. Learned Counsel for the applicant also places reliance on the following two case laws :

Mahe Aalam Vs. State of Uttar Pradesh,

Parmatma v. State of U.P. (Cri. Misc. Application No. 3171 of 2002, decided on 21.11.2002 by Hon. S. S. Kulshrestha, J.).

In the case of Parmatama (supra) taking a cue from another case namely The State of Gujarat Vs. Govindlal Manilal Shah, , in view of the facts and circumstances of the case it was held that expenses of defence witness should be borne by the State and not by the accused. Finally, therefore, the learned Sessions Judge was directed to summon the defence witness on State expenses.

In the case of Mahe Aalam (supra) it was observed that the Court should not direct the accused to pay the expenses of the defence witness.

The provisions of Section 312, Cr. P.C. upon which the learned Counsel for applicant has placed reliance is as under :

Expenses of complainants and witnesses.-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 purposes of any inquiry, trial or other proceeding before such Court under this Code.

If we go through the provisions of the Code of Criminal Procedure in respect of the examining defence witness, it would be interesting to note that though in respect of the summon trial and warrant trial pending before the Magistrate the discretion has been given to the Magistrate and he may before summoning any witness on an application of the defence, require that reasonable expenses be deposited in the Court. But in the case of sessions trial no such discretion has been given to the learned Sessions Judge. This scheme can be understood by reading the relevant provisions carefully which are extracted hereinbelow:

Trial of warrant case has been dealt with under Chapter XIX of Code of Criminal Procedure and Section 243, Cr. P.C. deals with evidence for defence in cases instituted on a police report.

The provisions of Section 243, Cr. P.C. are as under :

Evidence for defence.-(1) The accused shall then be called upon to enter upon his defence and produce his evidence ; and if the accused puts in any written statement, the Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he consider 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:

Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an application under Sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

Similarly, in respect of the warrant cases instituted otherwise than on police report the relevant section dealing with the defence is Section 427 of Cr. P.C. which is as under :

Evidence for defence.-The accused shall then be called upon to enter upon his defence and produce his evidence ; and the provisions of Section 243 shall apply to the case.

Then Chapter XX deals with the trial of summons cases by Magistrate and the relevant section on the point is Section 254, Cr. P.C. which is as under :

Procedure when not convicted.-(1) If the Magistrate does not convict the accused u/s 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court.

Thus, in all the cases triable by Magistrate a discretion has been given to him to get the expenses of the witness deposited in the Court before summoning that witness.

But in the wisdom of the Legislature this discretion has not been given to the Sessions Judge in respect of the cases triable by the Court of Sessions as in the present case. The object is clear and bold. The cases triable by Sessions are of heinous nature in which more stringent punishment is provided. As such, the statutory right of defence becomes more significant and important. Therefore, with a view that this statutory right may not get frustrated or diluted, the discretion for requiring deposition of reasonable expenses as a condition precedent for summoning a defence witness has been done away with consciously in respect of cases of grave nature triable by Sessions. However, the Sessions Judge may refuse such prayer only on the ground if it appears to has been made for the purpose of vexation or delay or defeating the ends of justice. But the reason for the same has to be recorded. These provisions are contained u/s 233, Cr. P.C. Chapter XVIII which are as under :

Entering upon defence.-(1) Where the accused is not acquitted u/s 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, 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.

Thus, from a study of the aforesaid provisions relating to the summoning of defence witness it is clear that as far as the sessions trial is concerned the provisions of the Code stands on the same footing in respect of summoning the prosecution witness vis-a-vis defence witness and there is no difference. In other words like prosecution witnesses the defence witnesses in the sessions case are also to be summoned at the expenses of the State. The only rider is that such a request made by defence can be rejected if the learned Sessions Judge finds that the request has been made for the purpose of vexation or delay or defeating the ends of justice. A Sessions Court may also take recourse in this regard to the enabling provision envisaged in Section 312, Cr. P.C. quoted hereinbefore. Almost similar view has been taken in the following case laws :

Mahe Aalam Vs. State of Uttar Pradesh,

Raghubir Dayal Saxena and Others Vs. The State,

Ch. Venkateswara Rao Vs. State of A.C.B.,

T.N. Janardhanan Pillai Vs. State,

Debi Singh and Others Vs. King Emperor,

Therefore, in view of the above, the second impugned order dated 3.6.2008 so far it relates to a direction to deposit Rs. 4,000 in lump sum as expenses in respect of defence witness, i.e., the ballistic expert, deserves to be and is accordingly quashed. Learned court below may pass appropriate orders afresh in this regard keeping in view the aforesaid observations.

The petition is accordingly disposed of.