This is an application under section 435/439, Cr. P. C. Whereby an order passed by Additional City Magistrate, Court No. 2, Hyderabad, dated 25-8-1971 has been challenged. The order is to the effect of direction to the petitioner to deposit expenses of defence witnesses.
2. Briefly stated the facts of the case are that Dr. Nabi Bux had filed a complaint against the present petitioner under section 500, P. P. C. This complaint is said to be pending since 1962. It appears that the prosecution case is closed and the petitioner/accused had entered on his defence and he made an application on 3-11-1970 praying for summons against 14 defence witnesses. Some of these defence witnesses are people who are busy and holding responsible position in society.
3. It appears that earlier to this last, the petitioner had submitted another list on 6-7-1970.
4. The learned Magistrate considered the question of calling the defence witnesses and for that purpose examined the gist to find out whether the witnesses had been cited for the pur--pose of "vexation or delay or to defeat the ends of justice" The application was resisted ran behalf of the complainant on the ground that the witnesses should not be called as the prayer was riot made in the interest of justice, but was made for the purpose of vexation. On the other hand the Advocate for the petitioner/accused gave up witnesses cited by him in the earlier list submitted on 6-7-1970 and one witness cited in the latter list was also liven up. On that view of the matter, the learned Magistrate observed as follows:- "As this list contains Important personalities from Karachi, Rawalpindi, Lahore and others from Hyderabad and if sum--mons are issued to them they will claim T. A./D. A. From the Court and unless the accused will deposit their expenses, the Court will be handicapped. There are witnesses like Messrs Madni, Sayed Nasiruddin (now sail by accused to be at, Karachi instead of Lahore), M.
Halim Sheikh (also said now to be at Karachi instead of Rawalpindi) and Maulana Maududi front Lahore. As for Moulana Maudoodi, I have heard Mr. Chana and he says that he is to give evidence on the replies involving Islamic issues in the cross-examination of the complainant but not on any point contained in the book except words as Wald-u-zana used in the book. The point according to the learned defence counsel is whether this word is Sindhi or not. In fact this posit is not important and other witnesses such as Talib-al-Moula can say on this point whether this word is used in Sindhi language. I accordingly do not find it necessary to call this witness."
The learned Magistrate, however, ordered that a sum of Rs. 500.00 should be deposited towards the expenses, who had to come for places outside Hyderabad where this case is being tried.
Aggrieved by this order the petitioner has filed the present Revision application.
5. Section 257, Cr. P. C. Deals with the process for completing the production of evidence, at the instance of accused. The said provision reads as follows:- "257. (1) 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. 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 after the charge is framed, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the purposes of justice.
(2) 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."
It would appear that the Magistrate has to issue process for summoning of the witnesses unless it should seem that the witnesses were being called for the purpose of vexation or delay or for defeating the ends of justice, and in such case the grounds for such refusal have to be recorded in writing. Very often it may happen that an accused person may submit a long list of defence witnesses and cite some such witnesses who may find It very difficult to attend; and that the accused may do for the purpose of delaying the proceedings and defeating the ends of justice in such a case it is the duty of the Court to apply Its mind to the question and determine whether the submission of an ordinate long list of witnesses is not designed to procure the result which subsection (1) of section 257 seeks to avoid. In such cases the Court has the power of refusing such a prayer and the reasons for such refusal have to be recorded in writing. In case the Court finds that the prayer is not designed to defeat the provisions of section 257, Cr. P. C. There would be no option left in Court and the witnesses have to be summoned. In the present case the learned Magistrate refused to call at least one witness namely Moulana Maudoodi. No exception could be found with that and even the learned Advocate for the applicant could find no fault with that part of the order of the Magistrates whereby he refused to summon Moulana Maudoodi. With regard to the other witnesses, the learned Magistrate has ordered the deposit of expenses and that would show that the learned Magistrate was of the view that the evidence of these witnesses was necessary.
5. The question that arises in this Revision Application is whether the Court can require the reasonable expenses incurred by the witness in attending Court to be deposited before the witnesses came to give evidence. Under section 257 (2), Cr. P. C., a Magistrate does have the power to require the deposit of ex--penses, but this provision has to be read alongwith the main part of this section It has also to be borne in mind that justice should be reasonably cheap, and the Court has also to guard against deprivation of the right of an accused person to defend himself. After all there may be cases where an accused person may really be in indigent circumstances and for that purpose may not be able to deposit expenses. Will it then be proper to refuse to summon the defence witnesses and deprive an accused person of the right of his defence solely on the ground of his being unable or in some cases even unwilling, justifiably or not, to deposit the expenses. The case has been considered by several High Courts and I would now like to examine a few authorities in that behalf.
"It is true that section 257 (2), Cr. P. C. Lays down that the Magistrate may, before summoning any witness, require that his reasonable expenses incurred in attending for the purpose of the trial be deposited in Court. But the ordinary pro--cedure in warrant cases, and I am here dealing with a warrant case, is that the causing attendance of the accused's necessary witnesses is usually borne by Government Where a Magistrate finds that the accused has given a long list of witnesses to defeat or delay the ends of justice, he may decline to compel their attendance under subsection
(1) while the Court is fully justified in declining to accede to a request which would amount to an abuse of the process of the Court it should at the same time be careful not to do any act 'which might hamper the accused in his defence.
Again in the case of Parshotam Das v. Emperor (AIR 1936 Lah. 919), the accused had made an application for summoning an expert. Din Muhammad, J. Relying on the case of Syed Habib v.
Emperor observed as follows:- "The Court, therefore, should not hesitate in exercising its powers under the law, however highly placed a witness may be. An accused person should not be burdened with the costs of an expert, if his demand is unreasonable, especially when the Magistrate is empowered to enforce the attendance of the witness and to pay him his reasonable dues."
"The provision that the Magistrate shall, save in exceptional circumstances issue process on the defence witnesses is maintainable. The exception arises when the Magistrate considers that the application of the accused should be refused on a special ground which, moreover, must be recorded in writing."
The learned Judge had set aside the conviction of the accused in that case because the defence witnesses were not called, as the accused had not deposited their expenses. In a case from Dacca High Court viz. Muhammad Hussain Talukdar v. The State (PLD 1961 Dacca 434), a learned Judge of the said Court observed as follows:- "Under section 257(2), Cr. P. C. a Court trying a case is fully empowered to order that the reasonable expenses required for the attendance of the witness shall be deposited in Court by the person applying for his attendance before the witness is summoned. So that the learned Tribunal was legally competent to Impress upon the accused that they would be liable for all expenses Incurred for calling unnecessary witness or to call upon them, as he did in his next following order to deposit at once necessary expenses for payment to those witnesses who are found to be unnecessary or who are not examined."
6. On a consideration of the various authorities, I am of the view that subsection (2) of section 257, Cr. P. C. Has to be read in conjunction with subsection (1) of the same section. Under section 257 (1), Cr. P. C. a witness has to be called unless the Magistrate is of the view that the witness is being summoned for the purpose of causing vexation, delay or for defeating ends of justice. In case the witness is being summoned bona fide, the Court must call the witness. In that case burdening the accused with expenses may lead to defeat the ends of justice for the accused may be incapable of paying or unwilling to pay. In either case the result will be that the witnesses would not be called and the accused will be prejudiced to his trial. This does not appear to be the policy of our law which guarantees to an accused person the right of a fair trial and also a reasonable opportunity of defence against criminal charges.
7. Applying this principle, I find that the learned Magistrate has recorded no finding that the witnesses were being summoned for the a purpose of vexation or delay or to defeat the ends of justice: In these circumstances the learned Magistrate acted In error by burdening the accused with case of the witnesses. For these reasons I allow this Revision Application.
8. While allowing this application d must observe that this trial has dragged on for a period of 11 years. Whether there is justification for this delay, I cannot determine on the basis of de scanty material that is available before me, but I must observe that under any circumstances a period of 11 years is too long a period for a criminal prosecution to continue. The Magistrate shall, therefore, take proper steps to conclude this case at the earliest.