In the course of any inquiry, trial or other proceedings under the Criminal Procedure Code, if it appears to the Court that the examination of a witness is necessary for the ends of justice, and that the attendance of such a witness cannot be procured without unreasonable delay, expense or inconvenience, the Court may dispense with such attendance, and instead, it may issue a commission for the examination of the witness as per the following provisions.
However, if such an examination is of the President, Vice-President of India or the Governor of a State or an Administrator of a Union Territory, a commission must be issued for the examination of such a person as a witness, if it is necessary for the ends of justice.
Whenever a Court issues a commission for the examination of a witness for the prosecution, it may direct that such amount as it may consider reasonable to meet the expenses of the accused (including the Pleader’s fees) be paid by the prosecution.
If the witness is within the territory to which the Criminal Procedure Code extends, the commission is to be directed to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found, if, however, the witness is in India, but not in any State or area to which the Code extends, the commission is to be directed to such Court or Officer as the Central Government may specify by a notification.
If, however, the witness is in any 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 is to be issued in such form and is to be sent to such authority for transmission as the Central Government may prescribe by notification.
On receipt of the commission, the Magistrate to whom the commission is addressed must summon the witness before him, or alternatively proceed to the place where the witness is, and take down his evidence in the same manner as a trial of warrant-cases under the Code.
The parties to any proceeding in which a commission is issued may forward interrogatories in writing, which the Court directing the commission may think relevant to the issue, and in such case, it would be lawful for the Court to whom the commission is directed to examine the witness upon such interrogatories. Any such party may appear before the Court by Pleader or in person, and may examine, cross-examine and re-examine the witness.
After any commission has been duly executed, it is to be returned, together with the deposition of the witnesses examined, to the Court issuing the commission. The commission, the accompanying return and the deposition are to be kept open for inspection of the parties at all reasonable times, and subject to all just exceptions, may be read in evidence by either party and form part of the record of the case.
In every case where a commission is issued, the inquiry, trial or other proceeding may be adjourned for a specified time which may be reasonably sufficient for the execution and return of the commission.
Several cases have laid down that the taking of evidence on commission in criminal cases is to be most sparingly resorted to, that is, in extreme cases of delay, expense or inconvenience, and for instance, in the case of an ailing person or a pardanashin woman. The Rajasthan High Court has, however, warned that a pardanashin lady is not exempted from appearance in a Criminal Court as a matter of right. (Оm Prakash, 1964 A.I.R. Raj. 280)
The Bombay High Court has also observed that these provisions are to be resorted to only when absolutely essential and necessary, it has held that when a witness is, for all practical purposes, a complainant in a defamation case, his attendance cannot be dispensed with by issuing a commission for his examination, merely because he is a Minister. (Gulabrao v. S.D. Raje, – 47 B.L.R. 720)
The Supreme Court has also held that, as a general rule, in criminal proceedings, the important witness, on whose testimony the case against the accused is based, must be examined in Court, and ordinarily, the commission procedure should be restricted only to formal witnesses, or to such witnesses who cannot be produced without unreasonable delay or inconvenience. (Dharmanand Pant,—1957 S.C.R. 321)
The inconvenience which is to be considered by the Court in such cases is not only the inconvenience to the parties, but also the inconvenience to the witness who is sought to be examined. Thus, an apprehension of arrest, or a risk to the personal safety of a witness caused by threats given by the accused, would amount to “inconvenience” in the eyes of the law. So also, the possibility of a witness, who is a foreigner losing his job in his own country if he were to disobey his employers and come to India to give evidence, would amount to “inconvenience” contemplated by the Code.
Deposition of medical witnesses:
Section 291 of the Code of Criminal Procedure provides that the deposition of a Civil Surgeon or other medical witness which is taken and attested by a Magistrate in the presence of the accused, or taken on commission as above, may be given in evidence in any inquiry, trial or other proceeding under the Code, although the deponent is not called as a witness. If it thinks fit, the Court may summon and examine such a deponent as regards the subject-matter of the deposition. Such examination is, however, mandatory, if either the prosecution or the accused applies for the same.
Under the old Code, the Court was given a discretion to summon and examine a medical witness, but the present Code makes it incumbent on the Court to do so if desired by the prosecution or by the accused.
It is to be noted that this section is confined to cases in which a medical witness is not called at a trial. It cannot be extended to cases where the medical witness is called and examined.
Moreover, the section is limited to expert evidence tendered by a medical witness as such, i.e., the evidence must be on medical matters only. It has no application to evidence relating to facts tendered by a person who also happens to be a doctor. (Waris Khan,-1940 15 Luck. 429)
Identification Report of Magistrate:
S. 291-A (inserted by the 2005 Amendment) provides that a Report of Identification under the hand of an Executive Magistrate in respect of a person or property may be used in any inquiry, trial or other proceeding under the Code, although the Magistrate is not called as a witness.
However, the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine such Magistrate as to the subject-matter of the Report.
Evidence of Officers of the Mint:
S. 292, dealing which evidence of Officers of the Mint, is a new provision introduced by the 1973 Code. It provides that any document purporting to be a report under the hand of a notified Gazetted Officer of the Mint or of the India Security Press, upon any matter or thing duly submitted to him for examination and report in the course of any proceeding under the Criminal Procedure Code, may be used as evidence in any inquiry, trial or other proceeding under the Code, although such an Officer is not called as a witness. However, if the Court thinks fit, it may summon and examine any such officer as to the subject-matter of his report. However, no such Officer can be summoned to produce any record on which the report is based.
Moreover, without the permission of the Master of the Mint or the Indian Security Press, as the case may be, no such Officer can be permitted—
(a) To give any evidence derived from any unpublished official record on which the report is based; or
(b) To disclose the nature or particulars of any test applied by him in the course of the examination of the matter or thing.
Reports of Government Scientific Experts:
S. 293 provides that any document purporting to be a report of a Government Scientific Expert or any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Criminal Procedure Code, can be used in evidence in any inquiry, trial or other proceeding under the Code.
If it thinks fit, the Court may also summon and examine any such expert as to the subject-matter of his report. If any expert is thus summoned and is unable to attend personally, he may (unless the Court has expressly directed him to appear personally) depute any responsible Officer who is conversant with the facts of the case and who can satisfactorily depose in the Court on his behalf.
The Government Scientific Experts referred to in S. 293 are the following:
(i) Any Chemical Examiner or Assistant Chemical Examiner to the Government;
(ii) The Chief Controller of Explosives;
(iii) The Director of the Finger Print Bureau:
(iv) The Director of the Haffkine Institute, Bombay:
(v) The director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(vi) The Serologist to the Government; and
(vii) Any other Government Scientific Expert specified by notification by the Central Government for the purpose.
Formal proof not required for certain documents:
S. 294 provides that if any document is filed before any Court by the prosecution or by the accused, the particulars of every such document are to be included in a list, and the prosecution or the accused, as the case may be, is to be called upon to admit or deny the genuineness of each such document.
Where the genuineness of any document is not disputed, such a document may be read in evidence in any inquiry, trial or other proceedings under the Code, without proof of the signature of the person by whom it purports to be signed. However, it is open to the Court, in its discretion, to require such signature to be proved.
Provision regarding affidavits:
S. 295 provides that if any application is made to any Court in the course of any inquiry, trial or other proceeding under the Code, and allegations are made therein regarding any public servant, the applicant may give evidence of the facts alleged in the application in the form of an affidavit. S. 296 provides that the evidence of any person whose evidence is of a formal character can also be given by affidavit, and subject to all just exceptions it can be read in evidence in any inquiry, trial or other proceedings under the Code. The Court may summon and examine such a person as to the facts contained in the affidavit, and if the prosecution or the accused so desires, it becomes mandatory for the Court to do so.
Affidavits to be used before any Court under the Criminal Procedure Code may be sworn or affirmed before any of the following three authorities:
(a) Any Judge or any Judicial or Executive Magistrate; or
(b) Any Commissioner of Oaths appointed by a High Court or Sessions Court; or
(c) Any Notary appointed under the Notaries Act, 1952.
Previous conviction or acquittal, how proved:
S. 298 provides that in any inquiry, trial or other proceedings, a previous conviction or acquittal can be proved in the following two ways, in addition to any other mode of proving the same under any other law:
(a) By an extract certified by the Officer having the custody of the record of the Court in which such conviction or acquittal was held, to be a copy of the sentence or order; or
(b) In case of a conviction, either by a certificate signed by an Officer-in-charge of the Jail, or by production of the warrant of commitment under which the punishment was suffered.
Record of evidence in absence of the accused:
S. 299 provides that if it is proved that the accused has absconded and there is no immediate prospect of arresting him, the Court which is competent to try him, or commit him for trial, may, in his absence, examine the witness, if any, produced on behalf of the prosecution and record their depositions.
On the arrest of the accused person, such depositions can be given in evidence against him, if the deponent is dead, or incapable of giving evidence, or cannot be found, or if his presence cannot be procured without unreasonable delay, expense or inconvenience.
If it appears that an offence which is punishable with death or life-imprisonment has been committed by some unknown person or persons, the High Court or the Sessions Judge may direct any First Class Magistrate to hold an inquiry and examine any witness who can give evidence concerning the offence. Any deposition so taken can be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead, or incapable of giving evidence, or is outside India.