Report No. 25
Summary of Case-Law as to Issue of Commissions in Criminal Cases
Courts do not usually view with favour evidence recorded on commission. The power to issue commissions for the examination of witnesses, it is true, exists under sections 503 and 506 of the Code of Criminal Procedure, 1898; but that power, as has been observed,1 "should be used sparingly and only in the clearest possible case". Ordinarily, it is not proper to allow the evidence of an important witness for the prosecution to be taken on commission on the ground of inconvenience.2 In a recent case, the Supreme Court3 had occasion to make following observation, which may be of interest:-
"It is not necessary to refer to case-law on the point because the matter is one to be decided on the facts in each case. As a general rule it may be said that the important witnesses on whose testimony the case against the accused person has to be established, must be examined in court and usually the issuing of a commission should be restricted to formal witnesses or such witnesses who could not be produced without an amount of delay or inconvenience unreasonable in the circumstances of the case.
The idea of examining witnesses on commission is primarily intended for getting the evidence of witnesses other than parties principally interested such as a complainant or any person whose testimony is absolutely essential to prove the prosecution case. In short, a witness in a criminal case should not be examined on commission except in extreme cases of delay, expense or inconvenience and in particular the procedure by way of interrogatories should be resorted to in unavoidable situations.".
As was stressed in a Punjab case,4 examination on commission is an exception rather than the rule; the accused has a right to require that, save in special circumstances, he should be confronted with the witnesses who are to give evidence against him and to cross-examine them in the presence of the trial Court4.
1. Mohammad Shafi v. Emp., AIR 1932 Pat 242 (243) (Wort J.) approved by the Supreme Court in Dharmanand's case, AIR 1957 SC 594 (598).
2. Cf. Queen Empress v. T. Burke, (1884) ILR 6 All 224.
3. Dharmanand v. State of Uttar Pradesh, AIR 1957 SC 594 (598): 1957 SCJ 431.
4. State of Delhi v. Krishnaswamy, AIR 1954 East Punj 294 (295), (Bhandari C.J. and Bishan Narain J.).