In Re: K. Vedanta Desikan

Panchapakesa Ayyar, J.—This is a petition to revise the order of the Sub-Divisional Magistrate, Cheyyar, refusing the request of the

petitioner, who is accused, in C.C. No. 108 of 1948, on the file of the Sub-Divisional Magistrate, Cheyyar, of the offence of failure to pay the

sales tax due to Government, u/s 15 of the Madras General Sales Tax Act, to summon defence witnesses at Government expense, and directing

him to pay the batta of Rs. 140 required for the defence witnesses he wanted to be summoned.

I have heard the learned Counsel for the petitioner and the learned Public Prosecutor contra. The learned Public Prosecutor strongly opposes

this petition. I agree with him. The position in law is clear. Section 544 of the Criminal Procedure Code says,

Subject to any rules made by the Provincial 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 inquiry, trial or other proceeding before such Court under this

Code.

It is significant that the word there used is ""may"", not ""shall"", that is, discretionary, not mandatory. The phrase "" if it thinks fit"" further emphasises

this. But the learned Counsel for the petitioner relied on Rule 384 of the Criminal Rules of Practice for showing that it is mandatory. That too will

not help him. Firstly, the provisions of the Criminal Procedure Code will overrule any provision of the Criminal Rules of Practice, if there is a

conflict. Secondly, there is no conflict here. Rule 384 says:

Subject to the provisions of Rules 384-A and 384-B the Criminal Courts will pay, at the rates specified in Rule 387, the expenses of complainants

and witnesses in cases in which the prosecution is instituted or carried on by, or under the orders, or with the sanction of the Government, or of

any Judge, Magistrate, or other Public Officer, or when it shall appear to the Judge or Magistrate presiding over such Courts to be directly in

furtherance of the interests of public justice; also in cases entered in column 5 of the Schedule II appended to the Code of Criminal Procedure, as

not bailable; and in all cases in which the witnesses are compelled to attend by a Magistrate under the provisions of Chapter XLVI of the Code.

The Courts may make reasonable advances to witnesses compelled to attend to give evidence when such pre-payment is considered necessary.

None of the portions marked in italics apply to this case. The significant relevant portion is

when it shall appear to the Judge or Magistrate presiding over such Courts to be directly in furtherance of the interests of public justice.

That makes it not only discretionary for the Magistrate to pay such batta, but lays down the limits within which alone the discretion can be

exercised.

I do not consider that, in this case, where a person was prosecuted, u/s 15 of the Sales Tax Act, for the failure to pay the sales tax, the lower

Court was wrong in refusing to summon his costly defence witnesses at public expense in these days of financial stringency. The discretion was

Used rightly. This petitioner, who was said to be liable to pay the sales tax and thus augment the public revenues, wanted to diminish the public

revenues by asking for his costly witnesses in this bailable case, to be summoned at public expense, and his attempt was rightly nipped in the bud;

he was not a pauper unable to pay the batta, and he was unable to show any special reason also for the Government to shoulder a burden which

should be normally his. However, Magistrates will do well, when passing orders, refusing like this, to give the reason for the orders, namely, that

they do not consider this spending of Government moneys in the particular cases to be in direct furtherance of the interests of public justice. That

will prevent the putting of such petitions having no substance in them. With these remarks this petition is dismissed.