Judgment:
ORDER
H.S. Brar, J.
1. This is an application of Dr. Rameshwar Chander, PCMS-I, Chief Medical Officer, C.D.M.L.A. Hostel. Punjab, Chandigarh and has been treated as a petition under Section 482 of the Code of Criminal Procedure.
2. It has been stated in the petition by the Doctor that he had gone for Court evidence in the Court of Shri B.K. Gour, Aditional Senior Subordinate Judge, Mansa, on May 3, 1993 in the complaint case Vinod Kumar v. Goutam Kumar, under Section 323, Indian Penal Code. As the Court timings at Mansa were from 7 a.m., he had to go a day earlier, that is, he went to Mansa on May 2, 1993. He went to the Court to get his evidence recorded on May 3, 1993. As Shri B.K. Gour, Additional Senior Subordinate Judge was on leave, his evidence could not be recorded. Since it was a complaint case of a private nature, the expenses of my Travelling and Daily Allowance were to he given by the party, who called him for evidence. He had gone in a private car and as per his entitlement, he was allowed to travel by car and claim the expenses equivalent to first class railway fare. Accordingly, he demanded the expenses which came to Rs. 720/-. He was taken to the Court of Shri K.C. Gupta, Judicial Magistrate, Mansa. The Magistrate listened to the party and ordered that the Doctor should be bound down for May 19, 1993 and he should be paid Rs. 200/-. He requested the Court that as per his entitlement, his expenses were Rs. 720/-. The Magistrate said that nothing more could he paid to him and he used obnoxious words in the process. He requested the Court to give him Certificate of Attendance, but he was told to contact Shri B.K. Gour who was on leave. Shri R.C. Gupta, Judicial Magistrate also directed the Reader to record the order in which it was written that the Doctor had refused to accept Rs. 200/- and he was bound down for May 19, 1993. He was asked to sign that order if he wanted to get the Attendance Certificate. He signed the order but still the Attendance Certificate was denied to him.
3. It is then stated in the petition by the Doctor that as per rules in a private complaint the party was required to pay the expenses of the witnesses. The Court timings were from 7 a.m. at Mansa and one could not reach there in time on the same day and it was difficult to come back in the scorching heat after giving evidence. It was also a rule that in a private case, if the witness was bound down, he is paid the expenses in advance. He was a Chief Medical Officer of Punjab Government and his total salary came to Rs. 11,020/- per month and he was entitled to travel by car and claim by first class railway fare. Mansa is about 200 Kms. from Chandigarh and one day for journey and one day for return journey were permissible. So, he was entitled to the first class fare of railway and three daily allowance and it came to Rs. 720/-, but the Court offered him only Rs. 200/-, which meant that had to pay from his pocket for giving evidence when he was neither an accused nor a defendant in the case. He was a Senior Officer of the Punjab Government and was not an accused in the case. Instead of giving his right due to him, obnoxious language was used against him by the Judicial Magistrate. Then, he was bound down for May 19, 1993 and had not been paid Travelling or Daily Allowance for May 3, 1993, nor was the Attendance Certificate given to him. If he did not go on May 19, 1993, a warrant would have been issued, but at the same time it would be impossible for him to go by spending from his own pocket as he was not paid Rs. 720/- which was due to him on the earlier date. lie has ultimately prayed that he be given Travelling and Daily Allowances due to him as per rules, Attendance Certificate for the date he attended the Curt and the Magistrate be asked to improve his wrong behaviour and be courteous to the witness.
4. When treating the application as a petition under Section 482 of the Code of Criminal Procedure, it was ordered by V.K. Bali, J. on July 5, 1993, that- appearance of petitioner Dr. Rameshwar Chander as a witness in the Court of Mr. B.K. Gour, Judicial Magistrate Mansa, if still required, would remain stayed in the meantime.
5. Notice of this petition was issued to Advocate-General, Punjab, for July 29, 1993 and comments of Mr. K.C. Gupta, Judicial Magistrate, Mansa were called for, which have since been received.
6. After hearing the learned State Counsel and going through the record of the case along with the relevant Rules produced before me regarding expenses of witnesses, it will be helpful to reproduce Rule IV of Chapter 9-A of Rules and Orders of the Punjab and Haryana High Court, Volume-Ill:
' IV. The following scale of fees has been prescribed for medical men of different classes summoned as expert witness:-
-------------------------------------------------------------------For giving evidence in a station otherthan the one in which heordinarily resides.1. Civil Surgeon Rs. 16 to Rs. 50 per diem plusor other medical travelling allowance at tour rates.officer ofequivalentstanding.2 to 4 xxx xxx xxx -------------------------------------------------------------------(1) ... ... ...
(2) if such an officer is summoned by the Court at the instance of a private person or party, such attendance in the Court should be regarded as private practice of the nature of expert evidence and should be regulated as follows:-
(i) The Officer may accept the fee within the limit prescribed above with the sanction of the Court concerned. If, however, in any individual case it is considered necessary by the Court that a fee in excess of the prescribed limit should be allowed, this should be done with specific sanction of Government in each cases, which should be obtained through the Head of the Department in which the officer, is serving.
(ii) The apportionment of the fees realized from private persons or parties between Government and the medical officer would be in the ratio of 50:50 but for accounting purpose it would be, in the first instance, necessary that the full amount realized should be credited to Government, the share of the officer being thereafter drawn from the Treasury on a refund bill.
(iii) The Officer's travelling and subsistence allowance should be paid by the private person or party at whose instance he may have been summoned.'
7. From a reading of these Rules, it is clear that when a Civil Surgeon or other Officer is summoned by the Court at the instance of a private person or party, the officer's Travelling and Subsistence Allowance shall be paid by the private person or party at whose instance he was summoned. As regards his fee, the concerned Officer may accept within the limit prescribed in the above Table with the sanction of the Court concerned. If, however, in any individual case it is considered necessary by the Court that the fee in excess of the prescribed limit should be allowed, this should be done with specific sanction of Government in each cases, which should be obtained through the Head of the Department in which the Officer is serving. It is further provided that the apportionment of the fees realized from private persons or parties between Government and the medical officer would be in the ratio of 50:50 but for accounting purpose it would be, in the first instance, necessary that the full amount realized should be credited to Government, the share of the officer being thereafter drawn from the Treasury on a refund bill. Thus, the demand of the petitioner for Travelling and Subsistence Allowance made before the Magistrate seems to be genuine according to the Rules, through the Travelling and Subsistence Allowance had to be paid by the complainant at whose instance the Doctor was summoned; but it was the duty of the Court to realize it from the private complainant for further handing it over to the witness, that is, the Doctor in this case. The Magistrate should have calculated the amount of the Travelling and Subsistence Allowance which was payable to the Doctor and should have secured it from the complainant and handed over to him on May 3, 1993, the date on which the witness attended the Court. If the complainant or the party at whose instance the witness was summoned, was unable to pay the Travelling and Subsistence Allowance of the witness even for May 3, 1993, the Magistrate should not have bound down the witness for the next date till the full expenses for Travelling and Subsistence Allowance along with the fee prescribed were not deposited by the complainant in the Court for being disbursed to the witness. It so looks from the comments of the learned Magistrate that he has not been able to properly understand the import of the Rules regarding disbursement of Travelling and Subsistence Allowance as well as the fee to a Medical Officer of the Government. He misread the relevant Rules regarding the Travelling and Subsistence Allowance to be paid to the medical witness summoned by the Court at the instance of a private, person/party. It has been clearly stated in (iii) of Rule IV ibid that the officer's travelling and subsistence allowance should be paid by the private person or party at whose instance he may have been summoned. It is only regarding the fee to be given to the medical officer that the apportionment of the fee realized from private persons or parties between Government and the medical officer would be in the ratio of 50:50 and for accounting purpose it would be, in the first instance, necessary that the full amount realized should be credited to Government, the share of the officer being thereafter drawn from the Treasury on a refund bill. If the Magistrate had cared to go through the relevant Rules for payment to be made to a witness, Note 3 appended to the Rules in Part A of Chapter 9-A of Rules and Orders of the Punjab and Haryana High Court, Volume-Ill, could throw some light for his proper guidance. Note 3 reads as under:-
'Note 3.- Payment should be made personally by the Court and without delay:- It is the duty of the magistrate to ascertain in each case how far the witness has to travel to and from the Court and how many days it takes the witness to travel to the Court to give evidence and to return to his home. Every endeavour should be made to avoid delay in payment of the expenses of witnesses. As soon as the evidence the prosecution witnesses in cases launched by the State has been recorded the Magistrate should have the memorandum of costs of witnesses made out and forwarded to the Nazir from whom he should receive and personally disburse the amount to the witnesses before leaving the Court.'
8. So, it is very clear from a reading of the relevant Rules that the Magistrate should have calculated at least the Travelling and Subsistence Allowance of the witness and secured it from the complainant and handed over to the witness before his departure from the Court room; and if the complainant or the private person was not ready to pay the expenses of the witness then the Magistrate should have taken the remedial measures to ensure that the Doctor who had come as a private witness should have been given at least his Travelling and Subsistence Allowance, if not the fee. In that situation, the Magistrate should not have also bound down the witness for the next date.
9. It is further stated under Note 4 of the Said Rules that in all cases in which an officer of Government is summoned to give evidence the Courts should give him a certificate in the prescribed form (A) specifying the dates on which the officer was required to attend and the amount, if any, paid by the Court. If Shri K.C. Gupta, Judicial Magistrate Mansa, could mark the presence of the Doctor and order to bind him down for the next date, then it was incumbent on the part of the Magistrate to issue Attendance Certificate also to the Doctor, as prescribed under the Rules without his asking; but it is a fact that no Attendance Certificate was issued to the Doctor-petitioner.
10. The use of the obnoxious language and misbehaviour towards the Doctor have been denied by the Magistrate in his written comments. So, I leave it at that; but I cannot refrain from commenting that the Magistrate should have acted in accordance with the Rules concerning the payment of fee, Travelling and Subsistence Allowance etc. to the witness called by a private person in a complaint. He is also advised to be more careful in future while dealing with the judicial matters. He is also expected to be polite towards the witnesses or for that purpose anyone who appears in his Courts.
11. The petitioner shall be paid his Travelling as well as Subsistence Allowance in according with the Rules, as indicated above, for the date he already appeared in the Court and it will also be ensured by the Magistrate concerned to hand over the Travelling and Subsistence Allowance to the petitioner if he is called for as a witness in the Court in future in this case.
With these observations, this petition is disposed of.