M. K. Chandran and Another vs Food Inspector, Guruvayoor Township

K. Sreedharan, J.—The short question that arises for consideration is whether the petitioner should be directed to pay the batta to the witness summoned by him or should the State meet that expense. The petitioner is an accused in a case initiated by the Food Inspector under the Prevention of Food Adulteration Act. As per Rule 205(b) of the Criminal Rules of Practice, Kerala the allowances of complainants and witnesses (whether for the prosecution or for the defence) shall be paid by the court in cases in which prosecution is instituted or carried on under the orders or with the sanction of the government or of any public servant acting as such. The prosecution under the Prevention of Food Adulteration Act can be instituted only with written consent of the Central or State Government or of any person authorised by those governments (vide Sec 20 of the Prevention of Food Adulteration Act). Thus prima facie the allowances of all witnesses summoned in the case must be paid by the court.

Rule 206 of the Criminal Rules of Practice starts with the words "subject to the rules herein after contained". It is therefore to be seen whether there is any other provision in the rules which would go against the above said meaning of Rule 206. The learned counsel appearing for the respondent submits that witnesses summoned under Sections 254(3) or 243(2) of the Code of Criminal Procedure will not fall under Rule 206 of the Crl. Rules of Practice. He bases his argument on clause 4 of Rule 210. It states "When a public servant appears in his official capacity as a witness in a case which does not fall under Rule 206 or 207 as in the case in which sub-sec. (3) of Section 254 or sub-sec. (2) of Section 243 of the Code is applied, the party at whose instance he is summoned, shall pre pay into court the travelling and halting allowance admissible to him under the Service Rules applicable to him" This shows that public servants may be summoned to be witnesses and if they are summoned under Sections 254 (3) or 243 (2) then the party summoning them must pre pay the travelling and halting allowances When they are summoned under any other provision of the Code their expenses will be met by the court. This according to counsel, will give a clue as to the payment of batta As in the case of public servants other witnesses may be summoned under the provisions of Sections 254(3) or 243(2) of the Code. In such cases the batta should be paid by the party summoning those witnesses.

Section 243 comes under Chapter XIX of the Code dealing with trial of warrant-cases by Magistrates Sections 238 to 250 fall within that chapter. Section 243 deals with Evidence for defence after the prosecution adduced all their evidence in the trial subsequent to the framing of the charge against the accused in a case instituted on a police report. Clause 3 of Sec. 243 allows the Magistrate to require the accused to deposit in court reasonable expenses incurred by the witness in attending court in pursuance to the summons. This shows that in warrant cases instituted on police report the court can direct the accused to pay the batta to witnesses summoned for defence. Sections 244 to 247 deal with trial of warrant cases instituted otherwise than on police report. In such cases the Magistrate should at first proceed to hear the prosecution and take all evidence produced in support of the prosecution. If on the basis of the evidence so let in by the prosecution the Magistrate forms an opinion that there is ground to presume that the accused committed the offence then he is to frame charge against the accused. Thereupon the trial will continue depending on the plea of the accused. If the accused wants to cross examine any or all of the witnesses examined by the prosecution earlier, they are to be recalled. The expenses for recalling the witnesses are to be met by the court. When all the evidence of prosecution is let in, then the accused can enter upon his defence as provided by Sec. 247. In such a situation the provisions of Sec. 243 should apply. From the above provisions it is clear that all expenses in calling the witnesses for prosecution and those for recalling the witnesses for cross-examination by the accused under Sec. 246 (5) must be met by the court. When the prosecution evidence is over and the accused enters into his defence and wants witnesses to be summoned, the court may require the accused to deposit in court the reasonable expenses that may be incurred by the witness.

Section 254 within Chapter XX of the Code dealing with Trial of summons cases by Magistrates. It deals with procedure when the accused is not convicted under Sec. 252 or Sec. 253. Then the Magistrate should proceed to take all evidence produced in support of prosecution. Thereafter the Magistrate should take all evidence produced by the accused in his defence. For this purpose summons to any witness may be issued Clause (3) provides that the Magistrate may require the accused to deposit in court the reasonable expenses of the witnesses in attending the court, before issuing summons. From the above discussion it is evident that in trial of warrant cases and summons cases if the accused enters upon his defence and applies for issue of summons to any witness, for appearance in court or for production of any document, the Magistrate may require him to deposit in court reasonable expenses that may be incurred by the witness, before issuing summons. Such cases will not fall within the purview of Rules 206 and 207 of the Criminal Rules of Practice. Provisions contained in Sections 243(3) and 254(3) of the Code of Criminal Procedure also support this view. Therefore the courts below were justified in directing the petitioner to deposit in court the reasonable expenses that may be incurred by the witness in attending court prior to the issue of summons.

The result, therefore is the petition fails. It is accordingly dismissed.