Delhi District Court
Satish Gogia vs Neeraj Gupta on 4 April, 2009
1
IN THE COURT OF SHRI S. K. SARVARIA
ADDITIONAL SESSIONS JUDGE01/SOUTH
PATIALA HOUSE COURT
Criminal Revision No. 166/2009
Satish Gogia
s/o late Sh K C Gogia
R/o D24, Green Park Main
New Delhi.
Petitioner
Vs.
Neeraj Gupta
10, Central Lane
Bengali Market, New Delhi
Respondent
Date of Institution 6.3.09
Date when arguments
were heard 1.4.09
Date of order 4.4.09
ORDER
This revision petition is directed against the order dated 27/2/2009 passed by learned Metropolitan Magistrate by which application 2 filed by the revisionist under section 284 of CrPC for his examination on commission was dismissed. The brief facts giving rise to the present revision petition are that the respondent/complainant has filed a complaint under section 138 of the Negotiable Instruments Act against the revisionist on account of the alleged dishonoured cheque of the revisionist issued to the respondent/complainant. By the impugned order the learned Metropolitan Magistrate dismissed the application of the revisionist for appointment of local Commissioner for his examination at his residence.
It is not disputed that the revisionist is exempted from personal appearance through his counsel in the trial court and his statement under section 281/313 CrPC was recorded by learned trial court by supplying the questionaire to his counsel and the revisionist was given some time to answer the same along with properly authenticated affidavit as per order dated 24/2/2007 passed by the learned trial court. On account of these admitted facts coupled with the facts that the revisionist is hundred percent physically handicapped as to both lower limb and is 3 suffering from traumatic paraplegia fracture dislocation so it is not convenient for him to come to the court which is situated on the first floor to give evidence in several cases pending agent him, it is also argued that the learned trial court has alalowed the application under section 315 CrPC of the revisionist to examine himself in support of his defence evidence so it should not gave refused the application of the revisionist for his examination on commission. Therefore, the request is made to allow the revision petition by setting aside the impugned order of learned trial court and to appoint the local Commissioner for examination of the revisionist at his home. Reliance is placed upon the authorities : State of Karnataka by Peenya Police Station Vs. Byrappa@Byregowda Manu/Ka/8292/2006 decided on 24/07/06 by Karnataka High Court , K D Bose Vs Upendra Krishna Chatterjee & another 52 Cri.L.J. 1951, Cal. 503 Pyboina Ravindra Kumar Vs. State of A P 2000 Cri.L.J. 2564 A.P. Per contra the application of the revisionist for his examination 4 on commission at his residence was only to delay the proceedings before trial court and with no basis in the face of direction of Hon'ble High Court for expeditious trial passed way back in this case. It is argued that the revisionist/accused is running a trading business and also doing other businesses that is also a share broker. He is moving around quite frequently as he was never at home when the summons of the court were sent to him. It is argued that the application for appointment of local Commissioner should have been filed at the earliest at the time of any list of witnesses by the revisionist before trial court. It is also argued that the revisionist/accused has been travelling abroad by air so he can come to the court to give evidence. It is argued that the revision petition is liable to be dismissed. Reliance is placed upon the authorities Dharmanand Vs. State of UP AIR, 1957 SC 594, Queen Empress Vs A M Jacob 19 C 113.
I have heard the learned counsel for the parties and have gone through the trial could record, the authorities relied upon by both parties, revision file and the relevant provisions of law. 5
Unlike civil cases where on account of amendment introduced in order 18 CPC effective from 2002 which permits the examination of witnesses in civil cases through local Commissioner appointed by the court frequently, the position of the criminal trial is somewhat on a different footing. Generally speaking eyewitness account is of utmost importance in a criminal trial but in civil cases the position is somewhat contrary where generally the documentary evidence has more relevance and value as compared to oral evidence. This seems to be the reason for a liberalised approach in the examination of the witnesses on commission in civil cases by taking recourse to the relevant rules of Order 18 and Order 26 of the Code of Civil Procedure. The commission for examination of witnesses can be issued under section to 284 CrPC on the grounds indicated in the same. Further, as per section 286 CrPC so far is relevant the commission is to be executed either by the Chief Metropolitan Magistrate or such Metropolitan Magistrate as may be appointed in this behalf and not by advocate Commissioner like in civil cases.
6
In Dharmanand's case (supra) relied on behalf of the respondent it was held that the important witnesses should be examined in the court is a general rule and the idea of examining witnesses on commission is primarily intended for getting the evidence of witnesses other than parties principally interested such as a complainant or any person whose testimony is absolutely essential to prove the prosecution case. It was also held that the witnesses in a criminal case should not be examined on commission except in extreme cases of delay, expense or inconvenience and in particular the procedure by way of interrogatories should be resorted in unavoidable situations.
In Byrappa's case ( supra ) relied on behalf of the petitioner somewhat contrary view is taken. So also in K D Bose's case(supra) relied on behalf of the petitioner. In Byrappa's case (supra) Dharmendra's case( supra) was not discussed and law laid down in K D Bose's case being prior to and contray to the dictim of the Hon'ble 7 Supreme Court in Dharmendra's case (supra) these two authorities do not help the petitioner.
Although as per Pyboina Ravinder Kumar's case (supra) as relied on behalf of the petitioner the appointment of the Commissioner for examination of witnesses cannot be refused on the ground that there was direction from Hon'ble High Court to decide the case within the time but this authority at the most only nullifies only one of the arguments of the respondent that commission for recording evidence should not be allowed as direction was issued by Hon'ble High Court for expeditious disposal of the case long before. The Pyboina Ravinder Kumar's case (supra), however does not help the petitioner so far as the question of appointment of Commissioner for examination of witnesses/revisionist is concerned nor Dharmanand's case (supra) was not discussed in it.
In Gulabrao Wamanrao Patil, and another Vs D. Raje and the State, 1973 Cri.L.J. Bom. 948 of Bombay High Court relying upon the Dharmanand's case (supra) has declined the request of the prosecution for 8 examination of the State Minister on commission.
During the course of arguments it was not disputed that the revisionist has gone abroad by air in connection with his work. The Ld. Counsel for the respondent has also pointed out that the summons were issued to the revisionist and were received back by the Ld. Trial Court with the report that he is not at home, so the contention on behalf of the respondent that the revisionist is moving to places in connection with his work has force. When the revisionist can go abroad by air despite the fact that he is unable to walk and he is confined to wheelchair, he can certainly come to the Court to give evidence.
Before I part with the order, I would like to mention that though in the light of Dharmanand's case (supra) and the fact that the revisionist has gone abroad by air and summons issued against him received back with the report that he was not at home but still the Ld. Trial Court should take care that the number of cases pending against revisionist are fixed for defence evidence on the some date for the convenience of the 9 revisionist. The learnred trial court should endeavour to record the examination of the revisionist on a single dry and the consent of parties concerned may be obtained for consolidation of cases for the purposes of defence evidence of revisionist, provided same evidence is to be produced by the revisionist in all these pending cases. The respopndent and its counsel should also cooperate with the court for recording of statement of revisionist on a single day.
In view of the above, the Revision Petition is dismissed. The trial court record be returned along with copy of this order. The order be sent to server (www.delhidistrict courts. nic.in). The revision file be consigned to record room.
Announced in the open
court on 04.04.09 ( S K Sarvaria )
Addl Sessions Judge01/South
Patiala House Court