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13. Three main questions arise on the present application, and they are as follows:-

I. Is the present application covered by the terms of Section 503 of the Code of Criminal Procedure and maintainable under that section ?
II. Does the High Court have an inherent power to issue a commission for the examination of witnesses under Section 561A of the Code of Criminal Procedure in cases which do not fall under the terms of Section 503 of that Code ?
III. If the Court has the power to issue a commission, either under Section 508 or under Section 561A of the said Code, should that power be exercised and a commission issued on the facts of the present case ?

14. As far as question No. 1 formulated by me above is concerned, as it was a question of considerable importance, at our request Mr. Mehta has taken us in chronological order through, what he has stated to be, all the reported decisions of Indian Courts on Section 503. It is, however, not necessary for me to discuss all those cases in detail, because none of them purport to give a definition or lay down the scope of the terms "delay", "expense" or " inconvenience" in Section 503, and what is more, none of them deal with the question of examining on commission a witness in a foreign country. In fairness to Mr. Mehta, I must, however, offer very briefly my comments in regard to each of the cases cited by him, though I will not necessarily deal with them in chronological order, but would prefer to consider them in such order as is convenient for the purpose of the present discussion. The decisions reported in the Matter of the Petition of Farid- Un-Nissa (1882) I.L.R. 5 All. 92. In the Matter of the petition of Basant Bibi (1889) I.L.R. 12 All. 69, Lachhmi Lal v. Emperor [1922] A.I.R. Pat. 40, Mahomed v. Bacho [1980] A.I.R. Sind 56, and Om Prakash v. State , were all decisions relating to applications for the examination on commission of pardahnashin ladies, and the decisions in those cases were governed by considerations which were peculiar to the custom observed by such ladies. One principle which, however, can be gleaned from those cases is that, even in the case of pardahnashin ladies, if such a lady was an eye-witness to a serious offence, or was herself the complainant, commission would not be issued for her examination. It may further be mentioned that in the decision reported in Om Prakash v. State, it has been laid down (para. 5) that for the purpose of Section 503 of the Criminal Procedure Code, the inconvenience that has to be considered by the Court is not only the inconvenience to the parties, but also to the witness who is to be examined and that the word "inconvenience" which occurred in the said section was very wide in its import, as what was not convenient was inconvenient. It may further be pointed out that the decision reported in the Matter of the petition of Farid-Un-Nissa was a decision given prior to the enactment of the present Code of Criminal Procedure. With these observations, I do not think it necessary to discuss this bunch of cases in detail, cases which in fact merely proceed to lay down what, as a matter of convenience, should be done by Courts in the matter of the examination of pardahnashin ladies as witnesses, and is of no assistance for the purpose of determining the true interpretation of Section 503. Of the cases cited by Mr. Mehta, the decisions in the case reported in Empress v. Counsell (1882) I.L.R. 8 Cal. 896, and State of Vindhya Pradesh v. Harol Lal 9 [1952] A.I.R. V.P. 8, were cases in which the trial was by jury or assessors, and it is not difficult to understand the reluctance of the Courts to issue a commission in such cases. The present case was a trial before the Magistrate without the aid or assistance of a jury and the decision in those two cases may, therefore, be distinguished on that account. It may further be pointed out that the former of the said two decisions was also in regard to the position as it prevailed prior to the enactment of the Code of Criminal Procedure, and so also the decision reported in Empress v. Daji Narsu and Govinda Natha (1882) I.L.R. 6 Bom. 288, which is the earliest of the decisions cited by Mr. Mehta in chronological order. In the order passed by the Madras High Court in the decision reported in Me Grath v. Brachis (1910) 12 Cr.L.J. 64, the Court set aside an order for the examination of a witness on commission because " in the peculiar circumstances of the case" it thought that the witness who was an expert in handwriting and was the principal witness in the case should not be examined on commission. In the decision reported in Parma Nand v. Crown [1928] A.I.R. Lah. 73, the High Court declined to interfere with the exercise of the discretion by the District Magistrate in issuing a commission. A general observation was made that the issuing of the commission "would certainly be a considerable saving of expense" and Section 503 empowered the District Magistrate to issue a commission in such cases. The actual expense that would be entailed was, however, not considered by the High Court in the said case. In the decision reported in Vishnoo Nainaram v. Dipchand Sitaldas (1925) 27 Cr. L.J. 89, an order for the issue of a commission to examine a Mahant was set aside by the Court of Judicial Commissioner at Sind on the ground that it was not a wise exercise of discretionary powers by the District Magistrate. It may be mentioned that the Mahant had previously applied to the Government to exempt him from appearance in Courts of law, but the Government had declined to grant him that privilege, and in setting aside the order of the District Magistrate, the Court of the Judicial Commissioner has referred to the same. It has been further observed in the judgment in the said case that the provisions of O.XXVI, r.1 of the Code of Civil Procedure might be accepted as a safe guide by a Criminal Court in the matter of an application for the issue of a commission for the examination of a witness, as in the said case. There are two old decisions which have been referred to with apparent approval by the Supreme Court in a recent decision and they are the decisions in the cases of Queen-Empress v. T. Burke (1884) I.L.R. 6 All. 224 and Md. Shafi v. Emperor [1932] A.I.R. Pat. 242, both of which were cited before me by Mr. Mehta. The decision in the case reported in Queen-Empress v. T. Burke lays down the principle that it is not proper to allow the evidence of an important witness for the prosecution to be taken on commission on the ground that it would be inconvenient for the witness to attend Court, The decision reported in Md. Shaft v. Emperor lays down the general principle that Section 503 of the Criminal Procedure Code should be used sparingly and only in the clearest possible cases. These two decisions have been so construed by the Supreme Court in its judgment (para. 10) in Dharmanand v. State of U.P. which I will presently refer. In the case reported in H. Guha v. R.R. Chanda [1987] A.I.R. Rang. 231 a commission was granted in the case of a man suffering from heart trouble and fits, even though he was the complainant himself. In Shaukat Ali v. State of Punjab [1960] A.I.R. Punj. 565, an order for the examination of the Ruler of a former Indian State on commission was declined on the ground that it would not fall within the term "inconvenience" in Section 503 of the Criminal Procedure Code. In the decision reported in Thaharshey Hirji v. Ramp [1951] A.I.R. Kutch 44, what was held was that the mere fact that the witnesses sought to be examined were connected with the accused and would not attend the Court in Kutch, could not be a ground for issue of a commission under Section 503 of the Code of Criminal Procedure. In the decision of the Division Bench reported in K. D. Bose v. Upendra Krishna it was held that a commission could not be refused on the ground that the witnesses whom the accused sought to examine on commission, could not be cross- examined by the complainant, and it was observed that, if the complainant thought that those witnesses should be cross-examined, he had to make arrangements to do so on commission. It was further observed in the judgment delivered by Harries, C. J., in the said case (para. 7) that the contention that if the witnesses were examined on commission by interrogatories, the Court would not have the advantage of seeing and hearing them being cross-examined, was not a good reason for refusing commission, for if that was the position, "then section 508 should be wiped out of the Code, or used only for the examination of perfectly formal witnesses". In the decision reported in State of Delhi v. Krishna Swamy [1954] A.I.R. Punj. 294 an application was made for the examination on commission of Mr. K.M. Munshi, who was then the Governor of U.P. and had been cited as a prosecution witness in the said case. An application was made under Section 503 of the Criminal Procedure Code on the ground that personal attendance of Mr. Munshi would cause delay and inconvenience to the witness and dislocation of his public duties as the Governor of an important State. The Special Judge before whom the said case was tried declined to make the order applied for, on the ground that, as a Special Judge appointed under the Criminal Law Amendment Act, 1952, he had no power to issue commission under Section 503 of the Criminal Procedure Code, and secondly on the ground that, even if he had the power, that was not a fit case in which the power should be exercised. The State Government having approached the High Court in revision, that order was confirmed by the High Court, and it was observed (para. 5) that the inconvenience which the Legislature appeared to have contemplated was the inconvenience caused by the age or infirmity of a witness, or the fact that he resided at a place far removed from the place of trial, or the inconvenience (apart from the expense) which might be occasioned by compelling him to leave his occupation for a considerable length of time. It is interesting to note that, perhaps as a result of the said decision, an amendment was made in Section 503 of the Criminal Procedure Code whereby a proviso was added making it obligatory on the Court to issue a commission for the examination of the President, the Vice-President or the Governor of a State, if it was necessary to do so for the ends of justice. That leaves for my consideration the one and only decision of importance on the point which I am now considering, and that is the decision of the Supreme Court in the case of Dharmanand v. State of U.P. The accused in the said case was a Head Clerk in the Office of the Civil Surgeon at Almora and was charged with having misappropriated a sum of money entrusted to him during a portion of the period in which he was functioning as Head Clerk. The prosecution put in an application to examine on commission three witnesses, including two Civil Surgeons during whose tenure of office the alleged misappropriation had taken place. The Magistrate passed an order that commission be issued to examine the said witnesses. The examination of the said witnesses was thereafter proceeded with on commission by the submission of interrogatories which were filed in Court. The accused, however, put in an application objecting to certain questions on the ground that they were leading questions, and further stating that the appearance of two of them for recording their evidence in person before the Court was necessary and their cross-examination in Court should be arranged for that purpose. The Magistrate, however, appears to have made an order whereby only the language of the interrogatories was modified and the result of the proceedings was, as stated by the Supreme Court itself in its judgment (para. 3), that important witnesses such as two Civil Surgeons during whose period the alleged misappropriation took place, as well as the auditor, were examined on commission by interrogatories. The Supreme Court in its judgement laid down (para. 6) that it was an established and cardinal principle of criminal jurisprudence obtainable in all systems of law that in criminal proceedings evidence against the accused should be recorded in his presence and in open Court, so that the accused might be enabled to challenge such parts of the statement as he wished to challenge and the presiding officer might have the advantage and opportunity of hearing the witness in person, noting his demeanour and finding out for himself on such observation whether what the witness deposed was true or otherwise. It further proceeded to qualify that proposition by stating that where, on account of particular reasons, it was not possible to get the presence of the witness in Court, the Criminal Procedure Code provided for examination on commission. The Supreme Court then proceeded to consider the facts of the case and came to the conclusion (para. 8) that it had not been shown that the attendance of the two Civil Surgeons as well as the auditor could not have been procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable, and observed that there was not even a suggestion of unreasonable delay or expense and inconvenience in the case before them, and there was no possible justification on the record for the issue of the commission, and much more so for the issue of mere interrogatories. The Supreme Court then proceeded (para. 9) to consider the corresponding provisions in regard to the issue of a commission that are to be found in Sections 75 and 78 as well as O.XXVI. Rules 1 and 4 of the Code of Civil Procedure, and after referring to the conditions laid down therein for the issue of a commision, stated as follows (p. 598) :

(2) As a general rule, important witnesses should be examined in Court;
(3) In criminal cases evidence should be taken on commission only in extreme cases of delay, expense or inconvenience; and (4) The procedure by way of interrogatories should be resorted to only in unavoidable situations.

The decision of the Supreme Court in Dhannanand's case does not lay down the full import of the expression "delay, expense or inconvenience," nor does it lay down in what precise manner the requirement of serving the ends of justice is to be correlated to the three conditions viz. delay, expense or inconvenience provided for in Section 503 of the Criminal Procedure Code. There is an unreported decision of a Division Bench of this Court consisting of my brothers Patel and Kantawala in Lakshmandas Chaganlal Bhatia v. The State of Maharashtra (1966) Criminal Appeal No. 1626 of 1963, decided by Patel and Kantawala JJ., on April 18/27, 1966 (Unrep.) (along with several other appeals to which it is unnecessary to refer) in which the decision of the Supreme Court in Dharmanand's case was cited, and it was observed in the judgment of the Bench delivered by my brother Patel, that the proposition laid down by the Supreme Court in Dharmanand's case merely provides for the normal rule, but there might be circumstances in a case where to deny the issue of a commission might cause injustice, and to refuse to issue commission might "result in failure of justice for doing which alone all Courts exist". The Division Bench in the said case then proceeded to consider the question as to whether apprehension of arrest and prosecution on the part of the witness, who was a co-conspirator with the accused in that case and was proposed to be examined on commission on the application of the accused, would constitute inconvenience within the terms of Section 503. It held," the difficulty that the Court would not be able to watch the demeanour of the witness concerned and would not be able to prosecute him if he gives false evidence are far too few when compared to the liberty and sometimes the life of the accused, who may but for want of that testimony be unjustly convicted". However, on other grounds, the application for examining the said witness on commission was refused by this Court. On appeal to the Supreme Court, the order refusing the issue of commission was confirmed on the ground that there were facts to show that the application itself was not made in good faith. These are all the decisions which it is necessary for me to consider in regard to the proper construction of Section 303 of the Criminal Procedure Code. I agree with the view taken by the Rajasthan High Court in the decision reported in Om Prakash v. State, to which I have already referred, in so far as it lays down (para. 5) that the inconvenience that has to be considered by the Court on an application under Section 503 is not only the inconvenience to the parties, but also the inconvenience that would be caused to the witness who is sought to be examined on commission. Mr. Khandalawala has drawn our attention to the ordinary dictionary meanings of the word "inconvenience" which include, amongst others, "harm", "injury", disadvantage", "causing of trouble". I agree with the observations of the Division Bench consisting of my brothers Patel and Kantawala in their judgment in Lakshmandas Chaganlal Bhatia v. The State of Maharashtra, to which I have already referred, to the effect that apprehension of arrest from which a witness who is sought to be examined, on commission suffers would be "inconvenience" within the terms of Section 508 of the Code. In my opinion, it would be certainly within the dictionary meaning of that term to which I have already referred.

In the said passage, the Supreme Court made two things clear, (1) that all inherent powers are in the nature of additional or complementary powers of the Court; and (2) that they may be invoked only if they are not in conflict with or contrary to or different from any express provisions of the statute in question. The Supreme Court proceeded to lay down (para. 9) that the inherent powers of the Court' which are saved by Section 151 of the Code are with respect to procedure only, and are not powers over the substantive rights which a litigant possesses. It took the view that a party has full rights over its books of account and that the order made by the Additional Munsif infringed upon the substantive rights of the plaintiff in the said case and had, therefore, to be set aside. The Supreme Court has, however, by clear implication from its observation (para. 8) held in the said case that the Court did have inherent power to issue a commission, in addition to its power under Section 75 and Order XXVI of the Code of Civil Procedure, but it declined to do so only because the order in the case before it affected the substantive rights of the plaintiff in that case. That is how this decision has been construed by the Supreme Court itself in its later decision in the case of Manohar Lal v. Seth Hiralal [1962] , in which the observations made in para. 8 of the judgment in Padam Sen's case were actually quoted. In Manohar Lal's case the question which arose was whether the Court has inherent power to grant a temporary injunction in a case which does not fall under Section 94 or Order XXXIX of the Civil Procedure Code. The temporary injunction sought in that case was to restrain the appellant from continuing proceedings in the Court of the subordinate Judge at Asansol pending the disposal of the suit which the respondent had filed in the Court of the District Judge at Indore. It may be stated that the Asansol suit was the previously instituted suit in point of time, and the respondent made an application to the Asansol Court for stay of that suit under a. 84 of the Arbitration Act in view of one of the provisions of the Deed of Dissolution of Partnership in question in that case, but that application was rejected. The respondent then applied to the Court at Asansol for stay of that suit in exercise of its inherent power, but that application was also rejected. The appellant had, in the meantime, applied to the Indore Court for stay of that suit under as. 10 and 151 of the Code of Civil Procedure which was rejected and that order was confirmed by the High Court of Madhya Bharat. It was under those circumstances, that the respondent applied to the Court of the District Judge at Indore for a temporary injunction restraining the appellant from continuing the proceedings in Asansol Court. The District Court at Indore granted that injunction and an appeal from that order was dismissed by the High Court of Madhya Bharat. It was from that order that the appellant approached the Supreme Court by special leave. The Supreme Court, after referring to the conflicting decisions on the point, held (para. 18) that the Court could issue an interim injunction under circumstances which were not covered by Order XXXIX of the Code if the Court was of opinion that the interests of justice required the issue of an interim injunction. In support of that conclusion, the Supreme Court pointed out that there was "no such expression in section 94" which expressly prohibited the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code, and that it was well-settled that the provisions of the Code were not exhaustive for the simple reason that the Legislature was incapable of contemplating all possible circumstances which might arise in future litigation and consequently for providing the procedure for them. The Supreme Court further stated that the effect of the expression "if it is so prescribed" in Section 94 of the Civil Procedure Code was only this , that when the rules prescribed the circumstances in which temporary injunction should be issued, ordinarily the Court was not to use its inherent powers to make the necessary orders in the interests of justice, but was merely to see whether the circumstances of the case brought it within the prescribed rule. The Supreme Court further observed that if the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. The Supreme Court further pointed out (para. 19) that there was nothing in Order XXXIX, Rules 1 and 2 which provided specifically that a temporary injunction was not to be issued in oases which were not mentioned in those rules. Most important of all, the Supreme Court laid down (paras. 20-23) in categorical terms that the provisions of Section 151 of the Code themselves make it clear that the inherent powers of the Court are not controlled by the provisions of the Code. It may be stated that the decision of the Supreme Court discussed above, was the decision of the majority of the Judges constituting the Bench, with Mr. Justice J. C. Shah dissenting from the same. On a consideration of the facts of the case, the Supreme Court, however, came to the conclusion that it was not necessary in the interests of justice, or to prevent abuse of the process of the Court, that the temporary injunction in question should be granted restraining the appellant from proceeding with the suit at Asansol and the appeal was, therefore, allowed. A careful perusal of the judgment of the Supreme Court in Manohar Lal's case shows that the view taken by the Supreme Court was that the Court had inherent power in matters of procedure to make such orders as were necessary for the ends of justice, or to prevent abuse of the process of the Court, unless there was a specific provision which expressly prohibited the making of such an order in a case which did not fall within it. The Supreme Court also relied on the fact that the provisions of the Civil Procedure Code are not exhaustive and that the very existence of an inherent power shows that that was the position, for the simple reason that the Legislature was incapable of contemplating all possible situations that might arise in the course of litigation. As far as the Code of Criminal Procedure is concerned, the position cannot, in my opinion, be different. In fact, a single Judge of this Court has, in the case of Emperor v. Yeshvant Vithu 28 , in considering whether the Court had inherent power "apart from sections 282, 288, 805 and 465 of the Code of Criminal Procedure" to discharge a jury, observed (at p. 857) that the Criminal Procedure Code could not be said in that respect to be exhaustive, for it did not make provision, for instance, for the discharge of a jury upon the termination of a trial. As observed by the Supreme Court itself in Manohar Lal's case, a procedural Code cannot contemplate all possible circumstances. It is for that very reason that both the Codes of Civil as well as Criminal Procedure have sections preserving and declaring the inherent powers of the Court to make such orders as are necessary for the ends of justice, or to prevent abuse of the process of the Court, The Criminal Procedure Code not being exhaustive, and there being no express words in Section 503 of that Code to prohibit the making of an order for the examination of witnesses on commission in cases not provided for therein, I have no hesitation in coming to the conclusion that the High Court has inherent power to make such an order under Section 561A of the Code. Not only does Section 508 not prohibit the exercise of such inherent power, but the exercise of the inherent power to issue a commission for the examination of a witness in a case not falling under Section 508 would, in my opinion, not be in conflict with, or contrary to, or different from, the provisions of Section 508, insofar as if would meet a situation which Section 503 itself does not contemplate. I accept the construction which Mr, Khandalawala has placed upon Section 508 in the course of his arguments before us viz., that the principle of Section 503 is contained in the words "necessary for the ends of justice", and that the additional conditions viz., that the attendance of such a witness could not be procured without an amount of delay, expense or inconvenience which is unreasonable, are merely the situations which normally arise, and in setting out those situations there may be a lacuna on the part of the Legislature which may never have been contemplated. It is precisely in such cases where there is a situation which the Legislature has not contemplated that the inherent powers of the High Court under Section 561A can and should be invoked. To use the language of the Supreme Court in Talab Hussain's case (para. 10), it would lead to "fantastic" results if an order for the issue of a commission could be made in what I would call, a "lesser case" viz., of unreasonable delay, expense or inconvenience, but could not be made in a case in which it would be impossible to get the witness in question to give evidence before the Court, which would be of a grosser case in which there would be greater reason to make such an order.