MANU/KE/1475/2022

Equivalent Citation: ILR2022(2)Kerala693

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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.

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