Legal Provisions of Section 284 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
When attendance of witness may be dispensed with and commission issued:
ADVERTISEMENTS:
As a general rule every witness ought to be present in Court where the case is being tried. Therefore, the provisions of this section should be sparingly used only when absolutely essential and necessary. Particularly, in case of a defamation cases, the attendance of a witness cannot be dispensed with by issuing commission for his examination merely because he holds some influential position such as minister etc. Personal presence of the witness in Court for deposition has various advantages not only to the Court but also to the accused person.
Though the Courts have the discretion to issue commission for the examination of witnesses but it should be used sparingly and in extremely deserving cases. The Supreme Court in Dharmanand Pant v. State of U.P. held that the important witnesses on whose testimony the case against the accused person has to be established, must be examined in the open Court so that the accused may have an opportunity to cross- examine effectively the witnesses.
The Court further ruled that 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.
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ADVERTISEMENTS:
The object of the provisions contained in Section 284 is to see that the witnesses are examined in time and the matter is not inordinately delayed.
The proviso to sub-section is mandatory and is based upon the policy that the head of the State should not be summoned in Court.
Sub-section (2) gives discretion to the Court or the Magistrate to direct the prosecution to make payment of such expenses as considered reasonable to enable the accused and his counsel to be examined on commission. The provision is applicable to cases where a commission is issued for the examination of a prosecution witness.
The word ‘inconvenience’ used in the section has a very wide import and includes risk to the personal safety of a witness caused due to intimidation or threats given by the accused to cause harm or injury to him.
ADVERTISEMENTS:
The High Court in exercise of its inherent power under Section 482 of the Code may also order to issue commission for the examination of a witness where it deems it absolutely necessary in the interest of justice. It may also order payment of expenses in cases which are not covered by Section 284.
As to the question whether a complainant may be examined on commission, the Calcutta High Court was of the opinion that the term ‘witness’ used in this section also includes a complainant and, therefore, he may well be examined on commission. But Kerala High Court has expressed a contrary view and observed that a ‘complainant’ would not be covered under Section 284. The Court rejected the complainant’s request to be examined on commission due to his old age and ill-health on the ground that “complainant’s” privilege as a witness has to surrender to his duties as a complainant and to the rights of the accused person.”
The Supreme Court in Hussain Umar v. Dalip Singhji, held that where no particulars indicating willingness of the witness to be examined on commission are given and even his address is not given, the Court cannot issue a roving commission to Court or authority at different places for that will be contrary to the spirit of Section 284 of the Code.
As provided in sub-section (2) of Section 284 of the Code whenever a prosecution witness is examined on commission, the prosecution is required to pay the expenses incurred by the accused including his counsel’s fees to the accused.
The Supreme Court in State of Maharastra v. Praful B. Desai, reiterated that the provisions of Section 284 are intended to make sure that the witnesses whose attendance and evidence before the Court is essential but cannot be procured, may be examined on commission in order to avoid inordinate delay, expense or inconvenience.
The Court further observed that the development of science and technology have reduced distances and made communication with person anywhere in the world possible. Therefore, the witnesses may also be examined through video-conferencing. However, where the facilities of video-conferencing are not available, the witness can be examined by commission as provided under Section 284 of Cr. P. C.