Oak, J. - (1.) THIS is a reference by the learned Additional Sessions Judge of Gorakhpur. One Kamla Pati Pande filed a complaint against Chandrika Singh under Sections 379, 394 and 324, I.P.C. One Dr. Krishna Prasad Singh was examined as a prosecution witness. On 24th September, 1951 Dr. Singh made an application to the learned Magistrate that, the medical fee and travelling expenses of the witness had not been paid by the complainant. Upon this application the learned Magistrate passed the following order: Let the sum ordered to be paid by my predecessor be realized as fine. The order was passed on 29th September, 1951. Kamla Pati went up in revision before the learned Sessions Judge. The learned Additional Sessions Judge has made this reference recommending that, the learned Magistrate's order directing the realization of the money as a fine should be set aside.
(2.) I have heard Learned Counsel for Kamla Pati Pande and the learned Assistant Government Advocate. I am of the opinion that, the reference ought to be accepted. The learned Sessions Judge has referred to the case of Kamla Mandalini v. Paramsukh Chakrabutty : A.I.R. 1926 Cal. 289. In that case it was held that there is no provision in the Code of Criminal Procedure under which the Court can order payment of diet money to a witness.
(3.) THE learned Sessions Judge has referred to Section 547, Code of Criminal Procedure. Section 547, Code of Criminal Procedure states: Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.;