Imposing Unaffordable Costs Is Akin To Denying Relief: Kerala High Court Reduces Hefty Cost Imposed On Parties For Recalling Witnesses

The four petitioners (accused) were imposed with a total of 80,000 rupees as cost while allowing them to recall witnesses. Aggrieved by the imposition of heavy costs, the petitioners invoked the High Court's inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Justice A. Badharudeen observed that the imposition of unaffordable and heavy costs upon the accused for recalling witnesses was akin to denial of justice to them. 

“Law does not permit imposition of such a heavy cost, which is a burden to the accused. No doubt, cost is liable to be imposed, in consideration of the ordeal of the witness/ess by recalling them, to take care of them and their expenses on account of recalling. An order of the court while granting a relief should be reasonable and fruitful. If onerous and unaffordable cost is imposed, the same is akin to denial of the relief, ie., denial of justice.

The petitioners who were accused 1 and 2 had applied for recalling Prosecution Witnesses 1, 2, 3 and 6 and this was allowed by the Special Judge by imposition of heavy cost. The petitioners were directed to pay a cost of twenty thousand rupees to each of the prosecution witnesses to recall them. Thus, the petitioners were imposed with a cost of rupees eighty thousand.

The petitioners argued that the imposition of a high cost of rupees eighty thousand was onerous and should be set aside.

The Court noted that imposition of heavy costs upon petitioners would effectively prevent them from benefitting under Section 311 of the CrPC, which allows for recalling witnesses. It observed that once the Special Judge permits the recalling of witnesses, and if the petitioners lacking sufficient money were unable to pay the cost to recall witnesses then they would lose their opportunity to prove and establish their innocence.

The Court observed that orders issued by the Courts must be reasonable and not unreasonable. It said, “If courts grant reliefs by imposing conditions like “you can cut the flesh, without a drop of blood being spilled”, the same is nothing but outright denial of relief on the guise of allowing the same.”

Therefore, the Court deemed the imposition of a cost of twenty thousand rupees per person to be excessive and reduced it to three thousand rupees per witness. Thus, the Court modified the order and reduced the total cost imposed upon petitioners from eighty thousand rupees to twelve thousand rupees.

Accordingly, the petition was disposed of.

Counsel for Petitioner: Advocates Anand Kalyanakrishnan, C.Dheeraj Rajan

Counsel for Respondents: Senior Public Prosecutor Renjit George

Citation: 2024 LiveLaw (Ker) 432

Case Title: XXXX v State of Kerala

Case Number: CRL.MC NO. 5650 OF 2024

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