RATHIA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order dated 11/9/2001 passed by the learned Additional Sessions Judge. Bhadrak in S.T. Case no. 54/244 of 1996 is under challenge in this revision.

(2.) Facts of the case relevant only for determining the question in controversy are that on the petition under Section 311. Cr. P.C. filed by the petitioners who are facing trial in Sessions Trial Case No. 54/244 of 1996 before the learned Additional Sessions Judge. Bhadrak for having been charged under Sections 147, 148, 323, 294 302/143 of the Indian Penal Code, the 1.0., N.C. Naik (P.W. 12) was recalled for further cross-examination on 1/6/2001 with a direction to the defence to deposit a sum of Rs. 500/- towards the expenses of the witness However, the sum of Rs. 500/- was not deposited by the defence towards expenses of P.W. 12. But on the date fixed as no witness was present, W.T. message was sent to P.W. 12 fixing 12/6/2001 for his cross- examination. Even on that day when P.W. 12 did not turn up as revealed from the order sheet. W.T. message was again sent to him fixing 25/6/2001 for hearing. On the date fixed, the 1.0. N.C. Naik sent W.T. message praying for time. Hence, he was intimated by W.T. message about posting of the case to 24/7/2001 for his evidence. Thereafter, the learned trial Judge went on adjourning the trial of the case to 24/7/2001,7/8/2001, 21/8/2001 and 29/8/2001 for securing the attendance of the J.D. N.C. Naik, who did not care to turn up in spite of issuance of W.T. message. At last on 11/9/2001 to which the case was posted for further cross-examination of the so called 1.0., who defaulted in appearance disobeying the courts order the impugned order was passed with the following observation. Record shows that the defence has not yet deposited a sum of Rs. 500/towards tentative expenses of P.W. 12, pursuant to order dt. 30/4/2001. In such premises. I am not inclined to waste any more time by waiting for appearance of P.W. 12 for further cross-examination. Hence, call on 19/9/2001 for recording statement of accused persons. Accused persons be present on that date.T

(3.) The learned counsel Shri G.N. Mohapatra, appearing for the petitioners has raised only one contention stating that the order impugned in the revision directing payment of Rs. 500/- towards expenses of P.W. 12 for cross-examination is not sustainable in support of which he has relied upon Rajaram Patnaik v. K.K. Ayyar. Secretary M/s. Indian Metals and Ferro Alloys Ltd. Bhubaneswar. On the other hand, the learned Additional Standing Counsel Sri Satyabrat padhan appearing for the State rather conceded to the aforesaid contention having nothing to refute the same. In the reported case the petitioner challenged the Impugned order dt. 19/7/1999 passed by the learned Magistrate directing him to deposit Rs. 12.000/- to meet the expenses of the witnesses sought to be recalled for further cross-examination. It is held there in that the Magistrate is to summon witnesses and make payment of their expenses as per Orissa Criminal Court Witnesses (Payment of Expenses) Rules 1963. Under Rule 3(a),(ii) of the said Rules. Criminal Court is to make payment to the witnesses of their expenses where the offence alleged is a non-bailable one. The State Government framed the above Rules which Continue to remain in force. In addition to that Section 312 of the Code of Criminal Procedure, which deals with expenses of Complainant and witnesses make it manifestly clear that subject to any rule made by the State Government, any Criminal Court, may if it thinks fit, order payment on the part of the Government, of the reasonable expenses of any complaint or witnesses attending for the purpose of any enquiry, trial or other proceeding before such court under this Code. The State Government having been empowered by Section 312, Cr. P.C. framed the Orissa Criminal Court Witnesses (Payment of Expenses) Rules. 1963, which are in vogue.