Decided on March 18,1972

S.D.RAJE Respondents


- (1.) THE original accused Nos. 1 and 2 being aggrieved by the order passed by the learned Addl. Sessions Judge, Jalgaon directing commission to be issued for the examination of the Hon'ble Minister for Education, Madhukarrao Chowdhari, as a witness for the prosecution have come here in revision. A defamatory matter was published in a weekly called "janashakti" published from Jalgaon on 17 December 1970. The impugned article was captioned "bridge will shift where Ministers stray'. The Public Prosecutor, Jalgaon after obtaining the necessary sanction filed a complaint under Section 500 I. P. C against the applicants. On the day when the hearing was fixed it was argued that the Hon'ble Minister Shri. Chowdhari, who was said to have been defamed is an essential witness and that he should be examined. It was conceded that he should be examined at least once before the charge and that he may not be examined after the charge. The prosecution then filed an application stating that the witness was a public servant with several preoccupations and public duties to attend to and that his presence in the Court could not be procured without unreasonable amount of delay and inconvenience. It was also mentioned that the witness being a Minister has heavy responsibilities and has to deal with the matters of national importance. It is therefore not possible for the witness to attend the Court with short notice because he has to be at State headquarters for his public duties. It is therefore not possible for the witness to leave Bombay for Jalgaon to give evidence as a witness. In that view of the matter therefore the Public Prosecutor applied for issue of commission for the examination of the witness,, since his presence could not be procured without delay and inconvenience to the Court; it was requested that the commission shall be issued in accordance with the provisions of Chapter XL of the Code of Criminal Procedure.
(2.) THE learned Addl. Sessions Judge agreed that it was necessary for the Court to watch the demeanour of the witness for proper decision and that the accused should also be given a reasonable opportunity to test the veracity of the witness by effective cross-examination. He further agreed that witnesses like the President, the Vice-President and the Governor are allowed the privilege to be examined on commission only on the ground of status and not on the ground of public duties. Conceding that the examination of the Hon'ble Minister is necessary in this case for the ends of justice, he is of the view that if the witness attended the Court at Jalgaon. great inconvenience to him in the exercise of his public duties would be caused and that it will not be in public interests, if he leaves his duties at Bombay. The learned Judge is also of the view that the witness has to discharge his official duties and has to attend official functions and that therefore his presence in Court cannot be procured without inconvenience and delay; in that view of the matter therefore, he held that the circumstances of the case fulfils the conditions laid down in Section 503 of the Cr. PC It was, therefore, according to him proper and reasonable to order the examination of the Hon'ble Minister on commission. He therefore, allowed the application of the Public Prosecutor and ordered that commission be issued for the examination of the witness Sri. Madhukarrao Chowdhari. This order, therefore, is challenged here by the two accused. The point, therefore, that arises here for consideration is to see whether the impugned order is proper or not.
(3.) SECTION 503 of the Criminal Procedure Code is as follows: 503 (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a High Court, Court of Session, or any Magistrate that the examination of a witness is necessary for the ends of justice, and. that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case, would be unreasonable, such Court or Magistrate, may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter; Provided that where the examination of the President or the Vice-President r the Governor of a State as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such witness. ;

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