W. Broome, J. - (1.) This criminal revision application is directed against the refusal of a first class Magistrate of Gorakhpur to summon prosecution witnesses in a complaint case under Sec. 302, I. P. C. at State expense. The learned Magistrate insisted on the complainant depositing expenses and diet money for the witnesses before the would summon them.
(2.) The witnesses were to be summoned in accordance with the provisions of Sec. 208, Cr. P. C., since the Magistrate was inquiring into a case triable by the court of session; and this section lays down that - "the Magistrate shall proceed to hear the complainant (if any) and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution........" Clause (3) of the section further provides that - "if the complainant applies to the Magistrate to issue process to compel the attendance of any witness the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so." It is to be noted that there is nothing in the section empowering the Magistrate to demand the deposit of expenses before summoning the witnesses. In this respect Sec. 208 (relating to inquiry into cases triable by the Court of Session) is on a par with Sec. 252 (relating to warrant trials), which also contains no provision for the deposit of expenses before witnesses required to be examined by the complainant are summoned. In contradistinction to these two sections, Sec. 244 (relating to summons trials) contains a specific provision in clause (3), laying down that - "the Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court."
(3.) The absence in Secs. 208 and 252 of any clause corresponding to clause (3) of Sec. 244 clearly indicates that it is only in summons trials that the complainant can be called upon to deposit money in court to cover the expenses of the witnesses whom he wishes to examine. Any doubt that might linger in this connection has been dispelled by the Division Bench decision of this Court in Criminal Miscellaneous Application No 166A of 1960, decided on 14-3-1961, in which it has been laid down that the complainant is not liable for the process fee, diet money and other expenses of the witnesses to be summoned under Sec, 252, Cr. P. C. And by analogy it may safely be argued that no deposit of expenses can be insisted upon as a prerequisite for summoning witnesses under Sec. 208, Cr. P. C. which as pointed out above, is on a par with Sec. 252 in this respect.;