The court order summarizes the relevant code sections regarding the appointment of commissions to examine witnesses. It finds that the lower court erred in dismissing a petition seeking commission to examine a witness who is physically unable to travel to court. The lower court has jurisdiction to issue commissions if it is convinced the examination is necessary for justice and attendance would cause unreasonable delay/expense. The high court directs the lower court to reconsider the petition to appoint a commission to examine the witness.
The court order summarizes the relevant code sections regarding the appointment of commissions to examine witnesses. It finds that the lower court erred in dismissing a petition seeking commission to examine a witness who is physically unable to travel to court. The lower court has jurisdiction to issue commissions if it is convinced the examination is necessary for justice and attendance would cause unreasonable delay/expense. The high court directs the lower court to reconsider the petition to appoint a commission to examine the witness.
The court order summarizes the relevant code sections regarding the appointment of commissions to examine witnesses. It finds that the lower court erred in dismissing a petition seeking commission to examine a witness who is physically unable to travel to court. The lower court has jurisdiction to issue commissions if it is convinced the examination is necessary for justice and attendance would cause unreasonable delay/expense. The high court directs the lower court to reconsider the petition to appoint a commission to examine the witness.
The court order summarizes the relevant code sections regarding the appointment of commissions to examine witnesses. It finds that the lower court erred in dismissing a petition seeking commission to examine a witness who is physically unable to travel to court. The lower court has jurisdiction to issue commissions if it is convinced the examination is necessary for justice and attendance would cause unreasonable delay/expense. The high court directs the lower court to reconsider the petition to appoint a commission to examine the witness.
Crl. MC No. 389 of 2022 Decided On: 15.02.2022 Appellants: Vinod G. Nair Vs. Respondent: State of Kerala and Ors. Hon'ble Judges/Coram: Mary Joseph, J. Counsels: For Appellant/Petitioner/Plaintiff: Lal K. Joseph, Suresh Sukumar, Koya Arafa Mirage and Anzil Salim, Advs. For Respondents/Defendant: Sanal P. Raj, Public Prosecutor ORDER Mary Joseph, J. 1. The order passed by Judicial First Class Magistrate Court, Kochi (for short 'the court below') on 20.11.2021 in C.M.P. No. 36/2021 is assailed in the petition on hand. The order reads: "Heard the counsel for both sides. CMP 36/21 filed before this court for appointing a commissioner. This court is not empowered to appoint a commissioner for examination of witness as per the permission of Cr.P.C. Hence the petitioner is directed to approach the authority concerned as per the rules for appointing the commissioner under the permission of Cr.P.C. for examining the witness. For evidence to 01.12.2021." 2 . By the order above, the court below has dismissed an application filed by the petitioner seeking for appointment of a Commission for examination of witness No. 2 in the witnesses list dated 16.3.2021 under Sections 284(1) and 285(1) of the Code of Criminal Procedure, 1973 (for short 'the Code') for the reason that it is devoid of jurisdiction under the Code to appoint a commission. The court below has also directed the petitioner by the impugned order to approach the authorities concerned as per the Rules for appointing the Commission under the provisions of the Code for examination of a witness. The relevant provisions dealing with the appointment of a Commission for examination of a witness and the procedure to be followed on such appointment being made are contained in Sections 284 to 286 of the Code. The relevant provisions are extracted hereunder to have a clear idea about it. "Section 284(1) When attendance of witness may be dispensed with and commission issued - (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay,
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expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter: Provided that where the examination of the President or the Vice President of India or the Governor of a State or the Administrator of a Union territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness". Section 285. Commission to whom to be issued. (1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found. (2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission, shall be directed to such Court or officer as the Central Government may, by notification, specify in this behalf. (3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission, as the Central Government may, by notification, prescribed in this behalf. Section 286 Execution of commissions--Upon receipt of the Commission, the Chief Metropolitan Magistrate, or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may for this purpose exercise the same powers, as in trials or warrant - cases under this Code." 3. Under Section 284(1) if it appears to a Court or Magistrate during the course of any inquiry, trial or other proceedings under the Code, that examination of a witness is necessary for meeting the ends of justice, and also that the attendance of such a witness cannot be procured without an unreasonable amount of delay, expense or inconvenience, the Court or Magistrate may dispense with such attendance and may issue a Commission for the examination. Therefore, a Court or Magistrate is empowered to issue a Commission for examination of a witness on being convinced that the witness for examination could be brought before it only with some unreasonable delay, expense or inconvenience. The proviso to Section 284 of the Code speaks about the issuance of a Commission for examination of the President or Vice President of India or the Governor of a State or the Administrator of a Union territory on the court being convinced that their oral evidence is essential to meet the ends of justice. 4. Sub-section (2) of Section 284 of the Code says that while issuing a Commission for the examination of a witness for the prosecution, the court may direct payment by the prosecution of the amount which it considers reasonable to meet the expenses of the accused. 5 . Section 285(1) of the Code speaks about the authorities to whom the Commission shall be issued. It provides that when the witness is within the territories to which the Code extends, the Commission shall be directed to the Chief Metropolitan Magistrate or
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Chief Judicial Magistrate within whose local jurisdiction the witness is to be found. 6. As per sub-section (2) of Section 285 of the Code, if the witness is in India, but in a State or an area to which the Code does not extend, the Commission shall be directed to such Court or officer as specified by the Central Government in a Notification issued by it. 7. Sub-section (3) of Section 285 of the Code provides that if the witness proposed to be examined by a Commission is in a Country or a Place outside India and the Central Government has already made arrangements with the Government of such Country or Place for taking evidence of witnesses in relation to criminal matters, the Commission shall be directed to such Court or officer, and sent to such authority for transmission as specified by the Central Government in a Notification issued in that behalf. 8 . Section 286 of the Code provides for the procedure for execution of such Commissions. It provides that upon receipt by the Chief Metropolitan Magistrate or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, of a Commission issued by a court or Magistrate, any of them shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence and for the purpose, he shall exercise all the powers of a court as in trials of warrant-cases under the Code. 9. The application filed by the petitioner is to be looked into in the above background. Annexure A3 is the application filed by the petitioner before Judicial First Class Magistrate Court-IV, Kochi. It was filed under Sections 284(1) and 285(1) of the Code. 10. In the application filed for the purpose, the petitioner has stated a genuine purpose for not examining the witness in the court in the usual manner and therefore the examination of the witness through Commission undoubtedly is necessary to meet the ends of justice. It has been stated in the application that the witness is unable to travel up to the court to be examined as a witness for the time being due to some physical incapacity and therefore his attendance before the court could not be secured without unreasonable delay and expenditure. There is every reason in the application filed to convince the court of the need for examination through Commission. Therefore, the court has every authority to issue a Commission to meet the requirements of the petitioner. Therefore, the party approaching the court primarily has to apprise the court that the examination sought is necessary to meet the ends of justice and that the examination of the witness by the court can be achieved only with an amount of unreasonable delay, expense or inconvenience. If the witness is within the territories to which the Code extends, the Commission issued by the Court or Magistrate shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate within whose jurisdiction the witness is to be found. On receipt of the Commission issued, the Chief Judicial Magistrate or Chief Metropolitan Magistrate shall summon the witness to the court or proceed to the place where the witness is, as the circumstances demand and record the evidence as if a court does in trials of warrant cases. 11. It has been specifically stated in the application that the person proposed to be examined by issuance of a Commission is a material witness to establish the stand taken by the accused in the prosecution. In three other cases connected with the case, the said witness was already examined and the oral evidence tendered by him, as well as certain documents admitted as authored by him and marked in evidence are required to be controverted through him. It has been further stated that the witness has informed the Court about his inability on account of some physical incapacity to attend the court
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for examination. In the above circumstances, appointment of a Commission for his examination was sought. The list of witnesses to be examined in the prosecution was also filed and witness No. 2 is the one, proposed to be examined through Commission. The petitioner has also undertaken to bear the expenses of the witness. The purpose behind examination of the witness through Commission though was stated in the application precisely, the court below dismissed it stating that it was not empowered by the provisions of the Code to do so. On a reference of the provisions extracted supra, there is no scope for even a doubt to arise about the authority of the court or Magistrate to issue a Commission. It is contemplated that the Commission on issuance by the court or Magistrate shall be forwarded to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate or such Metropolitan Magistrate or Judicial Magistrate as appointed by them and any of them on receipt of the Commission shall either summon the witness to be examined before him or to proceed to his place of abode and shall take down the evidence tendered by him. It appears that the impugned order was passed by the court below without understanding the true spirit of the provisions extracted supra. The impugned order is liable to be set aside for the reasons. In the result, the application is allowed. The impugned order is set aside. The court below shall reconsider the application filed by the petitioner as C.M.P. No. 36/2021 in S.T. No. 55/2016 and pass appropriate orders, having due regard to the provisions extracted hereinabove, within ten days' from the date on which a certified copy of the order is received by it.
Karen M. Ross - Essential Legal English in Context - Understanding The Vocabulary of US Law and Government (2019, New York University Press) (10.18574 - Nyu - 9781479897988.001.0001) - Libgen - Li