Allowed a criminal petition prevailing that appointing an Advocate as Commissioner to examine the complainant was impermissible under Cr.P.C. sections 284-286.
The petition was allowed on the grounds that appointment of an Advocate Commissioner was not permitted under the relevant Cr.P.C. provisions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Criminal Petition No.4939 of 2010
ORDER:
In this petition, order dated 7.6.2010 passed in Crl.M.P.No.2800 of 2010 in C.C.No.278 of 2008 on the file of the Court of XV Additional Judge-cum-XIX Additional Chief Metropolitan Magistrate, Hyderabad is assailed.
The respondent-complainant (complainant) filed complaint for prosecuting the petitioner-accused (accused) for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). The main grievance of the complainant is that under the order assailed, an Advocate Commissioner was appointed for the purpose of further examining him even though he was already examined in chief and cross exhaustively earlier, which is against the spirit of the provisions relating to the examination of witnesses through Commissioners enshrined in Sections 284 to 286 Cr.P.C. It is claimed that under those provisions, on approaching the concerned Chief Metropolitan Magistrate or Metropolitan Magistrate, as the case may be, within whose local jurisdiction, the witness concerned is found, necessary provision can be made for appointing a Magistrate as Commissioner to examine such witness, who cannot be brought to the Court for doing so, upon which appointment, the Magistrate as Commissioner can approach the witness and examine him at a place where the witness resides.
Learned Additional Public Prosecutor has opposed the petition. In this context, it is necessary to extract Sections 284, 285 and 286 Cr.P.C. They read as follows.
284: 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 :
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.
(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution.
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, prescribe in this behalf.
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 of warrant-cases under this Code.
These provisions are in consonance with the contentions raised by the learned counsel for the accused. Therefore, it is clear that the appointment of an Advocate Commissioner to carry out the said work is against the spirit of those provisions and not permitted.
Emphatically, the complainant is aged 80 years, whereas on the ground that he was not in a position to attend the Court, an Advocate Commissioner was appointed for his examination. When in fact he is unable to attend the Court, the question of compelling him to attend the Court may not arise at all. In true sense, it is necessary to consider the capacity of the complainant to attend the Court and give evidence. Therefore, still the parties can approach the concerned Chief Metropolitan Magistrate or Chief Judicial Magistrate for the purpose of appointing a Commissioner in the light of the provisions enumerated above when it is not possible for the complainant to attend the Court.
Subject to the observations made above, the petition is allowed.
______________________ G. Krishna Mohan Reddy, J
Date: 24.8.2012 DA
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.4939 of 2010
24.8.2012
IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD
THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY
Criminal Petition No.4939 of 2010
Date: 24.8.2012
Between: Dr.N.Ramakrishna Raju .. Petitioner/Accused And Dr.T.Srinivasulu and another. .. Respondents
2 issues framed by the court
Whether an Advocate can be appointed as a Commissioner to examine the complainant when the main grievance was the examination of a witness who was already examined extensively.
Whether appointing an Advocate Commissioner is against the spirit of Sections 284 to 286 Cr.P.C. regarding witness examination.
2 provisions across 2 enactments
Dr.N.Ramakrishna Raju
Dr.T.Srinivasulu
G. Krishna Mohan Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
