DR SABEEL AHMED @ MOTU DOCTOR v. NATIONAL INVESTIGATING AGENCY

Officers by using firearms, ammunitions, thereby to strike terror in the people, disturb communal harmony and commit robbery/dacoity to raise funds for terrorist activities. In pursuance of such criminal conspiracy they collected weapons, recruited men, practiced firing, to incite communal disharmony identified religious leaders as targets for killing, made preparations by procuring implements committing robbery/dacoity to raise funds for terrorist activities, procured multiple mobile connections through fake IDs and exchanged e-mails though encrypted messages for concealing the design to commit crime. On 29.08.2012 at 12.30 p.m., in furtherance of such conspiracy, accused Nos.1 and 2 had reached near the house of Sri Seshachala to commit murder of Pratap Simha. But, they were arrested and from them a motorcycle, illegal pistol, live rounds, etc were seized. - 4 - NC: 2024:KHC:46537-DB WP No.16865/2024 ii) The petitioner was raising funds and providing logistic and financial support in arranging functions of LET in Riyadh. He was bringing people to Isterah. In such functions speakers from Pakistan used to address the members of assembly and organizers would identify the potential persons to get recruited to LET. Thus, he was supporter of LET an organization of terrorists in Saudi Arabia, Pakistan and their associates in India and he intended to strike terror in India.

4. The Trial Court on framing the charges against the accused is conducting the trial. On 15.02.2024, examination in PW.13/a Scientist F C-DAC Thiruvananthapuram, Kerala was completed. On that day at the request of the petitioner and other accused the matter was adjourned to 19.03.2024. On 19.03.2024 also the petitioner sought time for cross examination. The Trial Court granted time and adjourned the case to 05.04.2024 subject to the accused paying TA and DA of PW.13. The Special Public Prosecutor in compliance with the Court order to enable the accused to deposit TA, filed memo dated 01.04.2024 calculating the travel expenditure of PW.13 at Rs.20,650/-. The petitioner and accused No.24 filed application under Sections - 5 - NC: 2024:KHC:46537-DB WP No.16865/2024 243(3) and 312 of Cr.P.C. read with Rule 4(3) of the Rules, 1967 requesting the Trial Court to fix the TA and DA of PW.13 as per Rule 4(3) of the Rules, 1967. They claimed that as per the said Rules, batta payable to PW.13 is far less than Rs.20,650/-.

5. The prosecution filed counter to the application contending that PW.13 is Scientist in C-DAC which is an autonomous body and therefore, the above said Rules are not applicable to him. It was further contended that PW.13 being a Scientist has to give evidence in several other cases. The accused deliberately protracted the proceedings. Having regard to his official position and important service to public, PW.13 cannot be asked to travel by train.

6. The Trial Court on hearing the parties by the impugned order rejected the application on the following grounds: i) The Rules relied on by the accused/petitioner are not applicable to PW.13 as he is working as Scientist F at C-DAC which is a society registered under the Societies Registration Act, 1860. ii) PW.13 is not Government servant drawing salary from Government of India. - 6 - NC: 2024:KHC:46537-DB WP No.16865/2024 iii) The applicants having failed to cross examine the witness, though he appeared twice cannot claim the benefit of their own wrong.

7. Sri Mohammed Tahir, learned counsel for the petitioner reiterating the grounds of petition and the application submits that as per Sections 243(3) and 312 of Cr.P.C. read with Rule 4(3) of the Rules, 1967, the witness is entitled to TA and DA only as per the Rules and not as claimed by the prosecutor. He submits that the order of the Trial Court is contrary to the aforesaid Rules and the judgment of the learned Single Judge of this Court in M.N.Nayeem vs. State of CBI1.

8. Sri P.Prasanna Kumar, Special Public Prosecutor submits that evidence of PW.13 could not be completed due to the dilatory tactics of the petitioner and other accused and he was made to appear before the Court several times. He further submits that considering the conduct of the accused, Court granted adjournment subject to payment of TA and DA to PW.13. PW.13 is Scientist F in C-DAC which is the society registered under the Societies Registration Act, 1860 and not a Government department. Therefore, the Rules relied on cannot 1 Crl.P.No.5107/2010 (DD 25.10.2010) - 7 - NC: 2024:KHC:46537-DB WP No.16865/2024 be applied to him. Summoning such witness again and again diverts the precious public time and function. Considering aforesaid facts and circumstances and Section 309 Cr.P.C. the Trial Court has rightly accepted the memo submitted by the prosecution regarding travel expenses of PW.13. The judgment relied on is not applicable and that is rightly distinguished by the Trial Court. Absolutely there are no grounds to interfere with the impugned order and petition be dismissed with costs.

9. On careful consideration of submissions of both side and the materials on record, the point that arises for consideration is “whether the impugned order suffers the vice of arbitrariness or illegality?” ANALYSIS

10. There is no dispute that on 15.02.2024 and

19.03.2024 the Trial Court granted adjournment for cross examination of PW.13 at the instance of counsel for the accused. By 19.03.2024 the witness had attended the Court three times. Adjournment was granted subject to the petitioner and co-accused depositing the witness’s TA and DA calculated by the Special Public Prosecutor. Special Public Prosecutor on - 8 - NC: 2024:KHC:46537-DB WP No.16865/2024

01.04.2024 filed memo as per Annexure-E stating that the total travel cost of the witness is Rs.20,650/-.

11. The petitioner and accused No.24 filed application as per Annexure-F under Sections 243(3) and 312 Cr.P.C. read with Rule 4(3) of Rules, 1967 contending that as per those provisions the witness is entitled to TA and DA only at the rates specified therein. As already stated, that was opposed by the prosecution on the ground that those Rules are not applicable to the witness and having regard to the procrastination by the accused and standing of the witness, seeking reduction of TA is unjustifiable.

12. To examine whether the prayer of the petitioner and his co-accused are covered under the provisions quoted in the application, it is necessary to reproduce Section 312 of Cr.P.C: “312. Expenses of complainants and witnesses.— Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of the 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.” - 9 - NC: 2024:KHC:46537-DB WP No.16865/2024 Reading of the above provision clearly shows that, the said provision is meant for the payment of expenses by the Government and not by the accused or other parties. Reading of the said provision further shows that the Court has the discretion to award reasonable expenses of any witness attending the Court for inquiry or trial.

13. Section 243(3) Cr.P.C. relied on by the petitioner and his co-applicant reads as follows: “243. Evidence for defence.—(1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (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 - 10 - NC: 2024:KHC:46537-DB WP No.16865/2024 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 attending for the purposes of the trial be deposited in Court.” Reading of the above provision shows that first of all the said provision applies to the defence evidence i.e., the evidence which the accused seeks to lead. Section 243(3) clearly shows that when a witness is summoned on the application of the accused, the Court has the discretion to fix reasonable expenses incurred by the witness in attending the Court and that shall be deposited in the Court. Section 243 does not say that it is subject to any Rules in that regard. Therefore, the said provision also does not advance the case of the petitioner or the co-applicant to say that they are not liable to pay the cost.

14. The title of Rules, 1967 relied on by the petitioner is as follows: ‘Karnataka Payment by Government of Expenses of Complainants and Witnesses (Attending Criminal Courts) Rules, 1967.’ - 11 - NC: 2024:KHC:46537-DB WP No.16865/2024 The title of the Rules as well as preamble of the said Rules clearly show that they are made for the purpose of payment of expenses of the witnesses by the Government and not by the other parties. Therefore, the Trial Court was right in not finding merit in the contention that the batta is payable only as per those Rules. Reading of the judgment in Nayeem’s case referred to supra shows that in the said case the witnesses were all local Government Officers. Therefore, as held by the Trial Court the said judgment is not applicable to the facts of the present case.

15. PW.13 is a Scientist from Thiruvananthapuram, Kerala. Summoning him again and again disturbs not only his work but public time and service to the public. Though the petitioner’s Counsel submits that adjournment was sought on medical ground, the same is not substantiated. It is material to note that the application was filed by the petitioner and accused No.24. Only the petitioner has challenged the said order. Accused No.24 has not questioned that. So far as accused No.24, the order has attained finality. There cannot be split verdict on the same issue. On that ground also the petition is unsustainable. - 12 - NC: 2024:KHC:46537-DB WP No.16865/2024

16. Chief examination of PW.13 commenced on

08.01.2024. Adjournment was granted on 15.02.2024 at the instance of the accused for cross examination. Second time adjournment was granted on 19.03.2024. The matter is dragged for close to one year due to the conduct of the petitioner who is a convict in U.K and Saudi Arabia, only due to his objections to pay costs to the witness. Moreover the order dated 19.03.2024 granting time subject to granting TA and DA is not challenged.

17. The above facts and circumstances clearly support the prosecution’s contention that the petitioner is abusing the process of the Court by filing such applications only to procrastinate the proceedings. Therefore, the petition is liable to be dismissed with costs. Hence the following: ORDER Petition is dismissed with costs of Rs.10,000/- payable to District Legal Services Authority, Bengaluru Urban District. Order of Trial Court regarding deposit of TA of PW.13 amounting to Rs.20,650/- shall be complied within 10 days from the date of this order, failing which the right of the - 13 - NC: 2024:KHC:46537-DB WP No.16865/2024 petitioner to cross-examine the said witness shall stand forfeited. If the costs are not paid to DLSA within 10 days from the date of this order, the Member Secretary, DLSA shall recover the same as arrears of land revenue. Sd/- (K.S.MUDAGAL) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE AKC List No.: 1 Sl No.: 1