KAILASH SHARMA Vs. STATE

JUDGEMENT

(1.) Kailash Sharma petitioner has been prosecuted under section 420 of the Indian Penal Code. F. 1. R. against him is stated to have been lodged by the Inspector, Anti Cheating Squad, C.I.D. Crimes Branch, Delhi on January 25, 1960. The challan was put in on November 17, 1962 (after more than two years) on the allegation that the petitioner had cheated one Oathman and one Abdulbin, both of Malaya of 140 shillings each. Changes were framed against the petitioner on March 4, 1964. Almost at the conclusion of the trial the State made an application to the trial Court on May 18, 1965 for issue of commission to examine 9 prosecution witnesses including the two complainants on interrogatories. The petitioner filed his written objections against the above-said application on 22nd May, 1965. By orders dated 1st June, 1965 the trial Court allowed the application of the State in respect of five witnesses but rejected the same in respect of the other four as the prosecution gave them up. The petitioner went up in revision against the orders of the trial Court dated 1st June, 1965. The revision petition has been rejected by the Court of Shri R.N. Aggarwal, Additional Sessions Judge, Delhi on 15th of September, 1965. It is against the said order of the Additional Sessions Judge that the petitioner has come upto this Court under section 435/ 439 of the Code of Criminal Procedure. Section 503 of the Criminal Procedure Code reads as follows:-

(2.) It is not disputed by the learned counsel for the petitioner that the evidence of the witnesses sought to be examined on commission would be relevant. The only question that arises under section 503 (1) of the Code of Criminal Procedure is that whether the attendance of the five witnesses in question cannot be procured in the Court at Delhi without an amount of delay, expense or inconvenience which in the circumstances of this case would be unreasonable. Mr. V. S. Sawhney, the learned counsel for the petitioner states that delay in the context of the present case is irrelevant as the prosecution took more than two years to file a challan against him after the lodging of the F.I.R. and about another two years were taken thereafter for charges being framed against the petitioner. He then contends that keeping in view the trivial amount involved in the case and the fact that an offence under section 420 of the Code is compoundable with the permission of the Court it is not a case where the petitioner should be deprived of his right under section 506 (2) of the Code of Criminal Procedure to be present at the time of examination of prosecution witnesses and to cross-examine them. The petitioner states that all the five witnesses are necessary to be examined in the case but insists that they should be called in Court and examined in his presence and the Magistrate trying the petitioner should have the benefit of noticing their demeanour, etc. He relies on the judgments of the Allahabad High Court In the matter of the petition of Faridun Nissa and in Queen Empress v. T. Burke. He has also referred to the judgment of the Calcutta High Court in Queen Empress v, A. M. Jacob", and a judgment of this Court in State of Delhi v. S.Y. Krishnaswamy and others. In view of the latest pronouncement of the Supreme Court on the question of the scope and applicability of the provisions of section 503 of the Code of Criminal Procedure contained in their Lordships' judgment in Dharmanand Pant v. Stats of Uttar Prades it appears to be needless to discuss in any detail the earlier High Court judgments. According to an analysis of the law laid down by the Supreme Court in this respect it is clear that:-

(3.) At the conclusion of the hearing the learned counsel for the parties have agreed to a workable arrangement in this case which even otherwise appears to be just, fair and reasonable in the circumstances of- this case. The order of the Courts below for commissions being issued for the examination of the three witnesses other than the two complainants, namely Oathman and the Abdul on interrogatories is upheld. The prosecution shall file in Court a detailed estimate of the expenditure involved in obtaining the personal attendance of the two complainants from Malaya in the trial Court. The expenses will be calculated on the basis of which the witnesses are entitled as a matter of right to claim allowances for appearing for the prosecution in a criminal Court in this country. If the accused pays all such expenses into Court within 15 days of the date on which the Magistrate fixes the amount and informs the petitioner of the same the commission lor the examination of the two complainants shall not issue. In that eventuality the prosecution will have to procure the attendance of the two complainants in the trial Court at Delhi and will not be entitled to examine them on commission. If, however, the petitioner fails or refuses to pay into the trial Court the amount of expenses referred to above, within 15 days of the date of the order of the Court below the two complainants will also be entitled to be examined on commission on interrogatories.