MOHAMMAD SHAFI Vs. EMPEROR

JUDGEMENT

(1.) This Rule is directed against an order of the District Magistrate, dated 17th February 1932, ordering two witnesses, namely, the father and his daughter, to be examined on commission in a criminal case in which as I understand the facts, the petitioner before me is being prosecuted for kidnapping.

(2.) It appears that the Magistrate-acted upon a certificate issued by the Civil Surgeon of Sambalpur in which he purports to state that the girl has been suffering from diarrhoea, indigestion and has stomatitis and has also a history of spitting of blood with low fever and cough. In the first place the certificate itself although most often taken in evidence in this country is not evidence at all. The surgeon issuing this certificate is the only proper witness to prove whether the person about whom he speaks is in the condition which he alleges. But quite apart from that technical point, the order is bad. In a criminal prosecution above all the witnesses should be examined in open Court, giving an opportunity for the accused to examine them and it is only in those circumstances which are stated in Secs.503 and 506, Criminal P.C., that such an order could be made.

(3.) The grounds under Section 506 under which section it appears the Court acted in this case are when a witness cannot be procured without an amount of "delay, expense or inconvenience" which, under the circumstances of the case, would be unreasonable. The mere fact that the girl is temporarily ill is not a ground for allowing her to be examined on commission and the fact that the Magistrate, who is superior to the father who is also a Magistrate cannot spare him is not a ground to allow either the girl or the father to be examined on commission. Secs.503 and 506 should be used sparingly and only in the clearest possible case. In my judgment this order does not come within the sections at all. It is therefore set aside and the father and daughter must be examined and cross-examined in open Court. The Rule is made absolute.