Dave, J. - (1.) THIS case comes on a reference from the Sessions Judge, Jaipur. It was put up for hearing before our brother Sharma J. , but since he considered it proper to refer it to a Division Bench, it has come before us.
(2.) THE facts leading to the reference are that one Serumal presented a complaint against seven accused under sections 325, 341, 504 and 153 I. P. C. THE First Assistant City Magistrate, Jaipur City, Mr. Bhag-chand Soni, framed charges against them under sections 324 and 149 I. P. C. and then he was transferred. When the case came up for hearing before his successor, Mr. Narendra Mohan Saxena, the accused prayed for a de novo trial, which was allowed. On the 19th of August, 1950, the Magistrate ordered the complainant that he should either bring his witnesses himself on the next date or cause them to be summoned through the court after paying their expenses. THE complainant wanted the court to resummon the witnesses by itself at the expanse of the Government but that request was turned down. On an application being made by the complainant, the Sessions Judge, Jaipur has reported that the order of the Magistrate asking the complainant to pay the expenses of the witnesses was not in conformity with the provision of law and that he should be directed to call them at Government expense. On behalf of the accused, it was argued by their advocate Shri Jaideo Singh Verma. that according to circular No. 3 (Criminal) dated the 8th September 1927 of the Chief Court of the former Jaipur State, it was obligatory for the complainant to bear the expenses of the witnesses. The same argument was raised before our brother Sharma J. He thought that it was doubtful if these rules could be considered in force at present and for that reason he considered it proper to refer the matter to a Division Bench. In my opinion, the rules referred to by the advocate for the accused are no longer in force because according to sec. 16 of the Rajasthan Criminal Procedure Code (Adaption) Ordinance all laws dealing with criminal procedure were repealed and no rules have yet been framed by the Provincial Government in this behalf. Sec. 544 Cr. P. C. runs as follows: - "544. Subject to any rules made by the Government any criminal court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such court under this Code. " It is clear from the provisions of this section that a criminal court may, subject to the rules made by the Provincial Government, if it thinks fit, order payment of the reasonable expenses of witnesses on the part of the Government. Since the Provincial Government has not made any rules so far, according to this section, it will have to be determined independently of such rules whether the trial court was justified in compelling the complainant to pay the expenses of his witnesses and to warn him about the dismissal of his case on his failure to do so. It appears from the trial court's record that the complainant had himself produced all the witnesses before the previous Magistrate Mr. Bhag-chand Soni, and the court had even considered it proper to frame charges against the accused on the basis of that evidence. The necessity of resummoning the witnesses has arisen on account of the request of the de novo trial made by the accused. Moreover, this is a cognizable and a warrant case. It need hardly be pointed out that in a cognizable case it is the duty of the police to investigate the case and bring the offenders to trial. It was urged by the applicant's advocate that the police did not care to investigate the matter on bis report and therefore the complainant had to approach the Magistrate with a complaint. When he was able to convince the Magistrate that there was a prima facie case and the Magistrate proceeded to frame charges against the accused, then, to my mind, the complainant's responsibility came to an end. After a charge is framed in a cognizable and a warrant case, it is the duty of the court to recall the witnesses, if necessary, at the expense of the Government. If the necessity of recalling such witnessesarised because of the transfer of a Magistrate, then it throws still heavier responsibility on the State to bear the expenses of the witnesses. The necessity of recalling the witnesses in such cases does not arise because of an fault of the complainant and I see no reason why he should be penalised by paying the expenses again. The reference is therefore allowed and the trial court is directed to resummon the witnesses at the expense of the Government. . ;