IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 WP(C).No. 19024 of 2008(M) -------------------------- OS.109/2007 of MUNSIFF COURT, HOSDRUG .................... PETITIONER: ------------ C.V.KRISHNAN, S/O.KOMAN,TREASURER, PUDUKAL VAININGATT SREE VAIRAJATHAN EASWARANTE KSHETHRE COMMITTEE, PUDUKAL VILLAGE, HOSDURG TALUK, P.O.UPPILIKAI, KASARAGOD DISTRICT. BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: ------------- 1. KERALA STATE EX-SERVICE LEAGUE, NILESHWAR BRANCH, HOSDURG TALUK, NILESHWAR P.O, KASARAGOD REPRESENTED BY ITS PRESIDENT. 2. PUTHUKAI VAININGATT SREE VAIRAJATHAN EASWARANTE KSHETHRAM COMMITTEE, PUTHUKAL VILLAGE, HOSDURG TALUK, REPRESENTED BY ITS SECRETARY BALACHANDRAN. 3. BALACHANDRAN, SECRETARY, PUTHUKKAL VAININGATTU SREE VAIRAJATHAN EASWARANTE KSHETHRAM COMMITTEE, PUTHUKAL VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.19024 of 2008 ------------------------------- Dated this the 25th June, 2008. J U D G M E N T Petitioner is the second defendant in O.S.No.109 of 2007, on the file of the Munsiff Court, Hosdurg. I.A.No.1272/2008 was filed requesting the court to procure his presence for examination in the suit, he being an under-trial prisoner. Learned Munsiff allowed the application, but directed to deposit necessary escort bata. This petition under Article 227 of the Constitution of India is filed challenging the order directing to deposit the necessary escort bata. The learned Munsiff evidently directed deposit of the escort charge invoking the power under Order XVIA of Rule 3 of Code of Civil Procedure which provides that before making any order under Rule 2, Court shall require the party at whose instance or for whose benefit the order is to be issued, to pay into the Court such sum of money as appears to the Court to be sufficient to defray the expenses of the execution of the order, including travelling and other expenses of the escort provided for the witness. Rule 2 also enables the Court to make an order requiring the officer in charge of the prison to produce a person before W.P.(C) No.19024/2008 2 the Court to give evidence whether it appears to the Court that evidence of the person confined or detained in a prison within a State is material in a suit. As rightly pointed out by the learned counsel appearing for the petitioner, Rule 2 deals with the power of the Court to require attendance of a prisoner to give evidence as a witness. It does not deal with the evidence to be tendered by the person in confinement or detention, if he is the party to the suit. 2. There is no specific provision in the Code of Civil Procedure dealing with the examination of a person in confinement or detention, who is a party to the suit. The Prisoners (Attendance in Courts) Act, 1955 (for short 'the Act'), was enacted to provide for attendance in Courts of persons confined in prison for obtaining their evidence or for answering a criminal charge. Under Section 3 of the Act, any Civil Court or Criminal Court, if it thinks that evidence of any person confined in any prison is material in any manner pending before it, may make an order in the form set forth in the first schedule of that Act directing the officer in charge of the prison to produce him for recording his evidence. The proviso mandates that no Civil Court shall make an order under the said section in respect of a person confined in prison situated outside the State, in which the Court is held. Under W.P.(C) No.19024/2008 3 sub-section (3) of section 3 of the Act, no order made under sub- section (1) by a Civil Court which is subordinate to a District Judge shall have effect unless it is countersigned by the District judge. 3. Examination of the petitioner in the suit is as a party to the suit and not as a witness to a party to the suit. Rule XVI A of Code of Civil Procedure provides for the procedure to be followed in respect of attendance of witnesses who are under confinement or detention. It cannot strictly apply to a person in confinement or detention, who is either the plaintiff or the defendant in the suit. 4. The learned counsel appearing for the petitioner further pointed out that petitioner is detained in several criminal cases and is being brought before the criminal court situated in the same court complex several days, and petitioner is in detention in Sub Jail, Hosdurg, near to the Court, and on each day, prisoners are being brought to the criminal court from Sub Jail and without any extra expenses, petitioner could also be brought to the civil court, and in such circumstances, learned Munsiff should not have directed petitioner to deposit escort bata, when it is the case of the petitioner that he has no financial resources to meet the expense. There is W.P.(C) No.19024/2008 4 force in the submission. Munsiff is therefore directed to consider the request of the petitioner to examine in the suit, by issuing an order as provided under Section 3 of The Prisoners (Attendance in Courts)Act, 1955. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.