ABDUL ALIM KHAN ABDUL AZIZ Vs. SAGARMAL BHERAJEE

JUDGEMENT

(1.) THIS is an application by the Nawab of Jaora a ruling prince, who is the de facto complainant in a criminal case before the Magistrate, Jaora, (against one Sagarmal mahajan) actually filed by his mukhtar-am or agent. The Nawab wanted to examine himself as a witness which is in his own interest. However, he simultaneously insisted that he was a "privileged person" exempt as of right from personal attendance as a witness in a criminal Court, and should be examined on commission in the manner provided in Section 503 Criminal Procedure Code at his own residence. The learned Magistrate having heard both the parties, felt that on grounds of reasonableness and justice, there was no case for action under Section 503 Criminal Procedure Code; if the Nawab wanted to examine himself as a witness in support of his own complaint, he should come to the Court like any other witness. On the legal aspect of the matter the Magistrate felt that there was nothing in the law, that is, in statute or in the constitution, justifying the claim that the Nawab was as of right entitled to be examined under Section 503 Criminal procedure Code.

(2.) THOUGH we are not directly concerned with the merits of the case, it may be noted that the complaint is, in the main, an allegation by the Nawab that the accused Sagarmal with whom he has pawned certain jewels, had dishonestly substituted them with cheaper articles and has thereby committed the offence of criminal breach of trust by conversion. Sagarmal's reply, it can be presumed, will be that the articles with him are the very ones pawned by the Nawab and there has been no substitution. Between the parties there has been keen litigation in the civil Courts involving very considerable sums and each makes very serious allegations against the other of personal dishonesty. In this background the learned Magistrate was right in holding that it would not be proper and just to put the other side to the disadvantage of going to the residence of the Nawab -- the real complainant -- for cross-examining him.

(3.) THE Sessions Judge has, however, reported that the purely legal side of the question should be examined. If the Nawab is entitled as of right to be examined on commission, he will have to be so examined if he wants to be a witness in support of his complaint. He has relied upon. Article XIII of the Covenant regarding the formation of the United State of Gwalior, Indore and Malwa printed as Appendix XXXVII in the Government of India White Paper on Indian States. It runs -