In Re: T.S. Chockalingam Pillai and Others

Kuppuswami Ayyar, J.—The only point for consideration in this case is whether the11 Magistrate was justified in refusing to pay the

expenses for the defence witnesses cited in C.C. No. 400 of 1945 on the file of the Third Presidency Magistrate, Madras. The petitioner has been

prosecuted in this case for an offence punishable under Rule 81(4) of the Defence of India Rules, which is punishable with imprisonment for a

period of three years or fine. The Magistrate has held that this is a bailable offence and that the accused should pay the expenses of the defence

witnesses and that the Court will not pay the same. He cites a decision of the Nagpur High Court under the Defence of India Rules in Ingley v.

Emperor ILR (1944) Nag. 813 for the position that offences punishable under the Defence of India Rules are bailable and states that as this is a

bailable offence the accused himself should pay the expenses for the witnesses under Rule 366 of the Criminal Rules of Practice. That rule

specifically provides for the payment of expenses of witnesses by Government in cases shown in the second schedule of the Code of Criminal

Procedure as not bailable. The question therefore for consideration is whether a case in which an accused is prosecuted for an offence punishable

under Rule 81(4) of the Defence of India Rules is non-bailable as per the second schedule of the Code of Criminal Procedure. The Nagpur High

Court has not dealt with the question whether an offence punishable under Rule 81(4) of the Defence of India Rules is bailable or not as per the

provisions in the second schedule of the Code of Criminal Procedure. All that is observed by the learned Judge there is that as there is no

notification that the offences are not bailable, they must be considered to be bailable and he has not considered with reference to the second

schedule of the Code of Criminal Procedure whether such offences are bailable under that schedule or not. The last item in schedule II deals with

offences against other laws, that is to say, other than those punishable under the Indian Penal Code and it is stated with regard to such offences that

if the offence is punishable with death, transportation or imprisonment for seven years or upwards it is not bailable, that if punishable with

imprisonment for three years and upwards, but less than seven, it is not bailable, except in cases under the Indian Arms Act, 1878, Section 19

which shall be bailable, that if punishable with imprisonment for one year and upwards, but less than three years it is bailable and that if it is

punishable with imprisonment for less than one year or with fine only, then also it is bailable. It cannot be said that this is a case in which the offence

is punishable with imprisonment for one year and upwards but less than three years because under Rule 81(4) the Court can award on an accused

a sentence of three years'' imprisonment. In considering the punishment awardable under the rule, we will have to take the maximum punishment

and if there is a possibility of the accused being awarded three years'' imprisonment, then the case will come under the class "" if punishable with

imprisonment for three years and upwards but less than seven years "" and the offence is not bailable. The Magistrate therefore ?was not justified in

treating the case as one in which the accused has been charged with an offence which is bailable. The order of the lower Court refusing to pay the

expenses of the defence witnesses on the ground that the offence is bailable and that the Court is therefore not bound to pay under Rule 366 of the

Criminal Rules of Practice is set aside.