1996(1) ALL MR 93
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
VISHNU SAHAI, J.
Smt. Jaspreet Mickie Oberoi Vs. Shri. Mickie Oberoi And Others
Criminal Writ Petition No.976 of 1995
14th September, 1995
Petitioner Counsel: Mr. S.R.CHITNIS
Respondent Counsel: Mr.D.U.MIRAJKAR
Criminal P.C. (1973), S.284 - Examination of witness on commission - Examination of material witness - Whether examination on commission proper.
The power to examine witnesses on commission should ordinarily only be exercised in respect of formal witnesses whose attendance cannot be procured without delay, expense or inconvenience which under the circumstances of the case would be unreasonable. For example, a witness who has recorded the F.I.R. at the Police Station on the dictation of the complainant can be examined on commission. [Para 13]
But material witnesses on whose testimony the case against the accused has to be established must be examined in court where the accused is also present. Examination of material witnesses on commission may result in the scales of justice tilting against the accused. It is only where their presence is impossible to procure without inordinate delay, exorbitant expenses or acute inconvenience, which under the circumstances of the case would be grossly unreasonable that such witnesses should be examined on commission. [Para 14]
AIR 1957 SC 594 [Para 15]
JUDGMENT : Rule returnable forthwith by consent. By means of this petition, preferred under Article 227 of the Constitution of India, and section 482 Cr.P.C. the petitioner has impugned the order dated 2-8-1995 passed by the Additional Sessions Judge, Pune refusing to quash the order dated 6-6-1995 passed by the Chief Judicial Magistrate, Pune fixing Rs.30,000/- as expenses for the commission for examining one Lt. Col. Jagjit Singh of Jammu who is said to be a material witness in the case.
On 8-10-1987, the petitioner married the Respondent no.1 at Pune under the rites and ceremonies under the Hindu Marriage Act, 1955. On 23-10-1987, the petitioner and the Respondent no.1 left for Jammu. In February 1988, the Respondent no.1 is said to have started threatening the petitioner at the point of knife. At that time, she was carrying pregnancy. On 31-7-1988, the petitioner delivered a female child at Pune. On 6-1-1989, Respondent no.1 harassed and twisted the petitioner's leg. This fact is alleged to have been seen by Lt. Col. Jagjit Singh who was a neighbour of the petitioner and Respondent no.1 at Jammu. On 21-1-1990, the petitioner filed a complaint against the Respondent no.1 and his mother Respondent no.2 for harassment and cruelty with the Commissioner of Police, Pune. On the basis of the complaint, an offence under section 498A r/w 34 IPC was registered against the respondents no.1 and 2.
3. The aforesaid complaint gave rise to the prosecution of Respondent no.1 and 2 in the Court of Chief Judicial Magistrate, Pune. When the prosecution evidence had closed, the petitioner made a prayer for examining Lt. Col Jagjit Singh on commission, on the ground that as he was ill, he could not come to Pune. That prayer of the petitioner was rejected by the Chief Judicial Magistrate, Pune vide his orders contained in Exhibit 160 in C.C. 63/94.
4. The petitioner challenged the order recorded in C.C. Exhibit 160 in the Court of Sessions, Pune by preferring Criminal Revision Application no.360 of 1995. An electrostat copy of the judgment passed by the Additional Sessions Judge, Pune, the genuineness of which has not been disputed by the Counsel for the petitioner, has been filed before this Court by Respondent no.1. The aforesaid Revision was allowed by the Additional Sessions Judge, Pune vide order dt. 27-4-1995 in terms :-
"The lower Court is hereby directed to issue commission for examining the witness viz Lt. Col. Jagjit Singh at present at Jammu, on commission. The commission order should contain an instruction about issuance of notice to the accused as to the programme of the execution of the commission at least one month in advance. The accused should place on record his present address for communication."
S/d (A.P.Lakhanikar) Additional Sessions Judge, Pune.
6. The order of the Chief Judicial Magistrate fixing Rs.30,000/- as expenses for commission was challenged by the petitioner in Criminal Revision Application no.464 of 1995 before the Additional Sessions Judge, Pune who vide order dated 2-8-1995 (the impugned order) was pleased to dismiss the aforesaid revision.
7. Feeling aggrieved by the order dated 2-8-1995, passed in Criminal Revision Application No.464/1995, the petitioner herein has approached this Court. On 12-9-1995, when the counsel for petitioner Mr. Chitnis had started making submissions Respondent No.1 appeared-in-person, and expressed a wish to put his appearance. On 12-9-1995, this Court passed the following order :-
Coram: V.Sahai, J.
Date : 12-9-1995
I have heard Ms. S.R.Chitnis for petitioner, Respondent no.1 in person and Mr. D.U.Mirajkar APP for Respondent no.3
Respondent no.1 prays for time to oppose this petition. Respondent no.1 says that he would give a copy to the counsel for petitioner the documents which he intends filing during the course of the day. He is allowed to do so. till 20-9-1995, proceedings in Criminal Case no.63/94 on the file of the Chief Judicial Magistrate, Pune shall remain stayed. Respondent no.1 informs me that he is posted in Kashmir valley and he has some reservations for going back on 14-9-95.
In the circumstances, the matter is directed to be put up HOB tomorrow i.e. 13-9-95. A true copy of this order attested by the Sheristedar of the court shall be given to the counsel for the petitioner today.
On 13/9/95 the matter was ordered by me to be taken up today.
8. As permitted by this Court, in its order dt.12-9-95, respondent no.1 filed a compilation in this Court along with an application, the copies of which he gave to the counsel for the petitioner and the counsel for the State of Maharashtra. That compilation contains a copy of the judgment dated 27-4-1995 passed in Criminal Revision Application no.360/95.
9. Mr. Chitnis for the petitioner vehemently questioned the properiety of the order dated 6-6-95 passed by the Chief Judicial Magistrate, Pune directing the petitioner to deposit Rs.30,000/- as expenses for commission. He also urged that the Additional Sessions Judge was in grave error in dismissing the petitioner's revision against that order. In the alternative, he contended that at any rate, the amount of Rs.30,000/- fixed as commission charges is far too exhorbitant.
So far as the contention of Mr. Chitnis about the propriety of the order saddling the petitioner with expenses for the commission is concerned, I find the same to be without merit. In the grounds of Criminal Revision no.360/95, which had been preferred by the petitioner before the Additional Sessions Judge, Pune it has been mentioned as ground 2.4 ("It was also made clear that the applicant is ready to bear the cost of the commission"). Such an averment which has also been referred to by the learned Additional Sessions Judge in his judgment passed in Criminal Revision no.360/95, disentitles the petitioner from arguing about the impropriety of that order.
10. While I was considering the alternative submission canvassed by Mr. Chitnis, Mr. Mirajkar APP floated a suggestion to the effect that if the parties consent, then the order passed in Criminal Revision No. 360/1995 by the Additional Sessions Judge, Pune directing issuance of a commission to examine Lt. Col. Jagjit Singh and the order dated 6-6-1995 passed by the Chief Judicial Magistrate, Pune directing the petitioner to deposit Rs.30,000/- as expenses for the commission, though not impugned in the present petition, be quashed by this court in exercise of its inherent powers under section 482 Cr.P.C. and the Chief Judicial Magistrate, Pune be directed to issue a summons to Lt.Col. Jagjit Singh to appear in the Court and give evidence.
11. There can be no quarrel with the legal proposition that to secure the ends of justice, this court has ample powers to quash orders under section 482 Cr.P.C. even though not impugned. The language of section 482 Cr.P.C. itself shows the amplitude of such a power which vests in the High Court and one of the contingencies in which it can be exercised is where the ends of justice warrant its exercise.
Section 482 Cr.P.C. reads thus :-
"Saving of inherent powers of High Court - Nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to such orders as may be necessary to give effect to any order under this code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Accordingly, I put the suggestion floated by Mr.Mirajkar to Mr. Chitnis, counsel for the petitioner and to Respondent No.1. Both of them were reasonable enough to accept it.
12. I feel it pertinent to point out that Courts should be very slow in directing examination of witnesses on commission. It is true that section 284 Cr.P.C. confers on the Court powers to examine a witness on commission. The aforesaid section reads thus :-
"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, 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"....
13. The power to examine witnesses on commission should ordinarily only be exercised in respect of formal witnesses whose attendance cannot be procured without delay, expense or inconvenience which under the circumstances of the case would be unreasonable. For example, a witness who has recorded the F.I.R. at the Police Station on the dictation of the complainant can be examined on commission.
14. Material witnesses on whose testimony the case against the accused has tobe established must be examined in Court where the accused is also present. This is a salutary principle of Criminal Jurisprudence which not only gives the accused an opportunity to challenge such parts of the statement of a witness as he wishes in cross-examination but, equally importantly, enables the Court to observe the demeanour of the witness and satisfy itself as to whether the witness is speaking the truth or not. Demeanour of a witness in Court is of paramount importance in deciding the question as to whether the evidence of a witness inspires confidence. Examination of material witnesses on commission may result in the scales of justice tilting against the accused. It is only where their presence is impossible to procure without inordinate delay, exorbitant expenses or acute inconvenience, which under the circumstances of the case would be grossly unreasonable that such witnesses should be examined on commission.
15. Way back as the year 1957, these time-honoured principles were laid down by Their Lordships of the Apex Court, in paragraphs 6 and 10 of their decision Dharmanand Pant. Appellant Vs. State of Uttar Pradesh. Respondent (See A.I.R. 1957 S.C. Page 594). My view is reinforced by the aforesaid decision.
(a) Judgment dated 27-4-1995 passed by the Additional Sessions Judge, Pune in Criminal Revision Application No.360/1995 Jaspreet Oberoi Vs. State of Maharashtra directing the lower Court to issue a commission for examining Lt. Col. Jagjit Singh is quashed and set aside;
(b) The order dated 6-6-1995 passed by the Chief Judicial Magistrate, Pune fixing Rs.30,000/- as expenses for commission is also quashed;
(c) The Chief Judicial Magistrate, Pune would issue a summons to Lt.Col. Jagjit Singh to appear as a witness in the Court on 31-10-1995. He would send the summons by Registered post forthwith. In case Lt.Col. Jagjit Singh does not appear on 31-10-1995 in response to the summons, it would be open for the court to proceed against him in accordance with law; and
(d) After the evidence of Lt.Col. Jagjit Singh has been recorded, the trial would proceed on a day to day basis and the Chief Judicial Magistrate would deliver judgment at the earliest.
17. It is expected that the Chief Judicial Magistrate, Pune would bear in mind that Respondent No.1 cannot repeatedly come to the Court for he is a Major in the Army and presently posted in Kashmir Valley; has difficulty in getting leave; incurs enormous expenses in travelling between that part of the country and Pune and in his boarding and lodging at Pune.