A. Pasayat, J.:— In this application under section 482 of the Code of Criminal Procedure, 1973 (in short, the ‘Code’) essentially two points have been raised for consideration. First relates to legality of the direction given by the learned Special Judge, Bhubaneswar requiring the petitioner to deposit Rs. 3,000/- towards the expenses of defence witnesses. Second relates to the conclusion that the prayer to recall p.ws 2 and 4 for further cross-examination did not merit consideration.
2. A brief reference to the background facts is necessary. Petitioner, one of the two accused in T.R No. 20 of 1987 pending before the learned Special Judge, Bhubaneswar, filed an application to recall p.ws 2 and 4 for further cross-examination. The prayer was rejected on the ground that these witnesses have been cross-examined at length since 1992. It was observed that the purpose of filing the petition was to prolong the proceeding, though this Court had directed for expeditious disposal of the case. Another application was filed praying for time to adduce defence evidence. Prayer for issue of summons to defence witnesses was also made. The prayer was accepted, but a direction was given that a sum of Rs. 3,000/- was to be deposited by the petitioner towards expenses of those witnesses.
3. The learned counsel for petitioner submitted that further cross-examination was necessary in respect of p.w 4 because in his evidence he has stated that the accused-petitioner was directed to receive charge of accountant from 31-3-1985. The letter of the bank dated 20-3-1981 shows that the accused was asked to take over charge with effect from 31-3-1981. In view of said document the statement of p.w 4 was apparently a mistake of fact, and therefore, further cross-examination of p.w 4 was necessary. It was further stated that certain documents were required to be adduced in evidence, and the petitioner had filed an application in that regard. Therefore, p.ws 2 and 4 were required to be cross-examined further. It is submitted by the learned counsel for opposite party No. 1 that details were wanting in the petition, and the aspects now pointed out were not urged earlier, and therefore, the learned Special Judge was justified in refusing to accept the prayer.
4. So far as p.w 4 is concerned, I find that specific reason was given as to why further cross-examination was necessary. I would have accepted the prayer in respect of discrepancy in the date only. The learned counsel for petitioner states that further cross-examination was necessary on other aspects and he would file a fresh petition indicating the details. If it is so done, the learned Special Judge shall consider the same. If he finds that other aspects are relevant, he shall permit cross-examination on these aspects. Otherwise, he shall permit cross-examination with respect to discrepancy of the date. So far as p.w 2 is concerned, thelearned counsel for petitioner states that a petition containing details and the suspects on which further cross-examination would be necessary shall be filed. If such an application is filed, same shall be considered on its own merits.
5. So far as the direction for deposit of Rs. 3,000/- towards the expenses of defence witnesses is concerned, it is the case of the petitioner that the direction is against the spirit of section 243(3) of the Code. According to the learned counsel for opposite party No. 1 the direction is in order, petitioner was required to bear the expenses as he wanted to examine witnesses in support of his case.
6. For resolution of the controversy, a look at the provisions of section 243(2) and (3), which are relevant, is necessary. They read as follows:
“243. Evidence for defence. (1) xxxxxx
(2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
(3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses, incurred by the witness in attending for the purposes of the trial be deposited in Court.”
7. Section 243 deals with evidence for defence. Sub-section (2) provides for issue of processes for compelling attendance of witnesses cited by the accused for the purpose of examination or cross-examination, or the production of any document. It applies after an accused has entered upon his defence, and it is intended to give an accused person opportunity, which the further progress of the case may have justified for the attendance of a particular witness either for purpose of examination as a witness for the defence or for purpose of cross-examination as a witness already examined for the prosecution, but the necessity for whose further attendance was not apparent at the time of the applicability of section 242(3) corresponding to section 251-A(7) of the Code of Criminal Procedure, 1898 (referred to hereinafter as the old Code). Section 243 lays down the procedure for issue of process for compelling the production of evidence at the instance of the accused for the purpose of his defence. The Magistrate has a duty to issue process to compel the attendance of witnesses named by the accused except where the Magistrate considers that the object for asking for such process is to cause vexation, delay or to defeat the ends of justice. The language of this sub-section is imperative and the Court has no discretion to refuse to issue process to compel the attendance of any witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which are specified in the section and which it is bound to record. The decisive ground under the section is that before a Magistrate refuses to summon a witness, he should ascertain from the accused briefly the substance of the witness or the point to prove which he is being summoned, and then if he comes to the conclusion that this witness is being summoned for the purpose of vexation or delay or for defeating the ends of justice he is entitled, after giving his grounds in writing, to refuse to issue process.
8. Sub-section (3) of section 243 deals with deposit of expenses. The Magistrate has a direction to pass an order under this sub-section. The discretion is subject to section 312 of the Code or any rules made by the State Government under it. There is no provision in the Code preventing the Court from summoning the defence witnesses at the expenses of State. Under sub-section (3) of section 243, the Magistrate has the power to call upon the accused to deposit reasonable expenses for summoning a particular witness, but that discretion has to be exercised judiciously and the Magistrate must indicate reasons for the same. The Magistrate has a discretion under subsection (3) either to direct the accused person to pay the expenses of the witnesses or also to summon them at the expenses of the State. The Orissa Criminal Court Witnesses (Payment of Expenses) Rules, 1963 (in short, the ‘Rules’) framed under the old Code prescribe inter alia in rule 3 that the criminal courts are authorised to pay the expenses of witnesses, whether for the prosecution or for the defence, in all cases entered as not bailable in column 5 of Schedule II appended to the Code. The Rules continue to be applicable after enactment of the Code. In warrant cases the usual rule is that the costs of causing the attendance of all accused person's witnesses ate usually borne by the State. Adequate reason must be assigned for a departure from this usual rule. The Magistrate must record his reasons for departing from the usual practice. Since the Magistrate is required to exercise discretion, same should be exercised judiciously.
9. ‘Discretion’ means use of private and independent thought. When anything is left to be done according to one's discretion the law intends it to be done with sound discretion and according to law. Discretion is discorning between right and wrong, and one who has power to act at discretion is bound by the rule of reason. Discretion must not be arbitrary. The very term itself stands unsupported by circumstances, imports the exercise of judgment, wisdom and skill as contradistinguished from unthinking folly, heady violence or rash injustice. When applied to a Court of Justice, it means sound discretion guided by law. It must be governed by rule, not by humour it must not be arbitrary, vague and fanciful, but legal and regular. Discretion must be exercised honestly and in the spirit of the statute. It is the power given by a statute to make choice among competing considerations. It implies power to choose between alternative courses of action. It is not unconfined and vagrant. It is canalised within banks that keep it from overflowing.
10. The learned Special Judge has not indicated any reason while directing the accused-petitioner to make deposit. The desirability of making such direction in the background of his capacity to pay, his means to do so, and such relevant factors do not appear to have been considered. He shall, therefore, considec the matter afresh and pass appropriate orders. The revision application is accordingly disposed of.
11. Revision disposed of.