Gujarat High Court Criminal Manual (subordinate court practice), 1977
[Para 163 (2) & (4)] IN THE COURT OF ...................................... CASE NO.............................OF 19..... I.........................................do hereby solemnly affirm and state as follows:— A summons bearing No...........................dated.................issued by the Court of:.................................in Case No..........................of 19...... (..................................V..........................) has been served on me on.......................19....., requiring production in the said Court on............................19....., of the documents stated below. I have carefully considered them and have come to the conclusion that they contain communications made in official confidence and I consider that the public interest would suffer by their disclosure for the following reasons:— LIST OF DOCUMENTS SUMMONED I, therefore, claim privilege under section 124 of the Indian Evidence Act, 1872. Solemnly affirmed at...................this.......day of.............19..... Signature and designation of the person making the affidavit. Sworn before me. (7) You shall be subject to the above rules for a period of.............years. (8) For any omission on your part to comply with the above rules you will be liable to simple imprisonment for a term which may extend to six months or to fine which may extend to Rs. 1,000/- or both. Read over and explained to the convict. (Signed) Dated ............................ (iii) in cases in which the offence or all of the offences with which the accused is charged is, or are, bailable, only if the prosecution has been instituted or is being carried on by the police or by, or under the orders or sanction of, the Government or of any Judge, Magistrate or other public officer, or if the Magistrate considers that the prosecution is directly in furtherance of the interests of the public, or that the person by whom payment is to be made is in indigent circumstances; Provided that, no such payment on the part of the State Government shall be made to any witness when the expenses of the attendance of such witness have been deposited in Court under sub-section (3) of section 243, section 247 or sub-section (3) of section 254: Provided further that, the Senior Clerks or Sheristedars in the Courts of the Magistrates may, after obtaining specific orders of the Court in each case and subject to the conditions herein-after contained, make payment of such expenses to witnesses. (2) The Court may refuse the payment of such expenses— (a) to any complainants whose complaint has been declared to be false or frivolous or (b) to any witness, whose evidence the Court does not consider to be substantially true, or (c) to any complainant or witness, who without sufficient cause, remains absent on any day fixed for the hearing and whose presence is secured by the issue of any coercive process. (3) Nothing in sub-rule (2) shall debar a witness from payment of expenses even if he is treated hostile to the party by which he was called as witness and is also permitted to be cross examined, unless the Court decides that evidence of such witness is not substantially true. In explanation below rule (1) (b) of paragraph 128 at page 53 for the words and figures "Rs. 2,500 (Two Thousand Five Hundred Rupees)" substitute the words and figures, "Rs. 4,000 (Four Thousand Rupees)". Act, 1950. (46 of 1950) in which death has resulted, the officer commanding the brigade or sub-area or station in which the accused person is serving; (d) make over the case for inquiry or trial under section 192 of the said Code. (5) Where a Magistrate has been moved by the competent military, naval or air force authority, as the case may be, under clause (a) of rule 3, and the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, subsequently gives notice to such Magistrate that, in the opinion of such officer or authority, the accused should be tried by a Court-martial, such Magistrate, if he has not taken any action or made any order referred to in clauses (a), (b), (c) or (d) of rule 3, before receiving the notice shall stay the proceedings and, if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the officer specified in the said sub-section. (6) Where within the period of fifteen days mentioned in rule 4, or at any time thereafter but before the Magistrate takes any action or makes any order referred to in that rule, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, gives notice to the Magistrate that in the opinion of such officer or authority, the accused should be tried by a Court-martial, the Magistrate shall stay the proceedings, and if the accused is in his power or under his control, shall deliver him together with the statement referred to in sub-section (1) of section 475 of the said Code to the officer specified in the said sub-section. (7) (1) When an accused has been delivered by the Magistrate under rule 5 or 6, the commanding officer of the accused or the competent military, naval or air force authority, as the case may be, shall as soon as may be, inform the Magistrate whether the accused has been tried by a Court-martial or other effectual proceedings have been taken or ordered to be taken against him. (2) When the Magistrate has been informed under sub-rule (1) that the accused has not been tried or other effectual proceedings have not been taken or ordered to be taken against him, the Magistrate shall report the circumstances to the State Government which may, in consultation with the Central Government, take appropriate steps to ensure that the accused person is dealt with in accordance with law. (8) Notwithstanding anything in the foregoing rules, where it comes to the notice of a Magistrate that a person subject to military, naval or air force law or any other law relating to the Armed Forces of the Union for the time being in force has committed an offence, proceedings in respect of which ought to be instituted before him and that the presence of such person cannot be procured except through military, naval or air force authorities, the Magistrate may by a written notice require the commanding officer of such person either to deliver such person to a Magistrate to be named in the said notice for being proceeded against according to law, or to stay the proceedings against such person before the Court-martial if since instituted, and to make a reference to the Central Government for a determination as to the Court before which proceedings should be instituted. (iv) Registered Medical Practitioner, Chartered Accountant and other professionals, summoned to attend the Court as a Witness, shall be paid such reasonable allowance having regard to his qualifications and standing, the time which he spends in giving evidence and such other relevant circumstances, as the Court may consider proper, subject to a minimum of Rs. 150/- and maximum of Rs. 300/- as remuneration for giving evidence. In case of experts, in the employment of the Government summoned for giving evidence, shall be paid fees at the rate prescribed by the Government, if any. (v) A Government servant who has not been paid travelling expenses and who is entitled to receive travelling allowance, under the rules applicable to him, shall obtain from the Court, a certificate that he has attended in his official capacity, stating the date of his appearance, the period for which he has been detained, and that he has received no payment from the Court. (6) The Presiding Officer may take out legible xerox copies of either typed or computerized documents of Record and Proceedings for preparing the paper books as provided in Sub-Paragraphs 1 to 5.