Report No. 41
Chapter XL
Commissions for The Examination of witnesses
40.1. Introductory.-
Chapter 40 lays down the procedure for issuing commissions for the examination of witnesses and for the execution of such commissions. Different provisions are made in the Chapter for witnesses in the territories to which the Code extends, witnesses in areas in India but outside those territories and witnesses outside India. It also provides for the execution in India of foreign commissions.
40.2. Section 50.-provision for payment of expenses of accused.-
Section 503 is the main section under which a commission may be issued when the examination of a witness is necessary for the ends of justice and his attendance cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreasonable. It has been suggested1 that the following proviso may be added to section 503.-
"Provided that the accused's counsel is present and the expenses of the same are borne by the prosection or the Government."
As regard presence of the pleader, the Code already contains a provision.2 As regards expenses, while we do not think that an order for paying expenses should be made a condition precedent to the issue of a commission in every case, we do appreciate that the Court should have a discretion to require payment by the prosecution of such expenses3 as the Court considers reasonable to enable the accused and his counsel to participate in the examination on commission. Such payment should however be confined to cases where a commission is issued for the examination of a prosecution witness. We recommend the addition of a sub-section (2) as follows.-
"(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution."
1. Home Ministry File No. 25/5/5.-Judi. Appendix II, Item 43 (Suggestion of Shri P.S. Sundarayya).
2. Section 506(2).
3. For the present law as to costs, see Abdul Aziz, AIR 1958 Raj 127.
40.3. Section 503, proviso.-
While the issue of a commission is discretionary under the main paragraph of section 503, the proviso makes it mandatory where "the examination of the President or the Vic.-President or the Governor of a State as a witness is necessary for the ends of justice." The principle on which the proviso seems to be based is that the head of the State should not be summoned in Court. The proviso is mandatory. Even if the President, the Vic.-President or the Governor wishes to be examined in the Court, that cannot be done. The proviso was enacted in 1954 to override the view taken in a Punjab case1 in which refusal by a special judge to issue a commission for the examination of a Governor was upheld by the High Court. No change is necessary in the proviso.
1. State v. Krishnaswami, AIR 1954 Punj 294.
40.4. Section 504.-
Su.-section (1) of section 504 provides that a commission for the examination of a witness in the territories to which the Code extends shall be directed to the District Magistrate or Chief Presidency Magistrate within the local limits of whose jurisdiction the witness is to be found. In view of the separation of powers such commissions should be issued to the Chief Judicial Magistrate. Even in the very rare cases in which an Executive Magistrate thinks it proper to issue a commission, it can be addressed to the Chief Judicial Magistrate. Su.-section (1) may be amended to read as follows.-
"(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."
No amendments are needed in su.-sections (2) and (3) of the section.
40.5. Section 505 revised.-
In section 505(1), which relates to the execution of commissions, for "District Magistrate", it will be necessary to substitute "Chief Judicial Magistrate", as a consequence of the change proposed1 to section 504(1). There seems to be no need for a slightly different wording in su.-section (2) and the two su.-sections may be combined.
Accordingly, section 505 may be revised to read as follows.-
"505. Execution of commission.-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 of warrant cases under this Code."
Sections 506 to 508A.- The remaining sections of this Chapter do not call for any comments or amendments.
1. See para. 40.4 above.
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