STATE OF DELHI Vs. S Y KRISHNASWAMY
HIGH COURT OF PUNJAB AND HARYANA
STATE OF DELHI
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Bhandari, C.J. -
(1.) Two points arise for decision in the present case, namely (1) whether a Special Judge appointed under the provisions of the Criminal Law Amendment Act, 1952, can exercise the powers conferred by Section 503, Criminal P. C.; and (2) whether the order passed by the learned Special Judge of Delhi declining to issue a commission for the examination of a certain witness should be set aside.
(2.) Mr. K. M. Munahi, Governor of Uttar Pradesh, was cited as a prosecution witness in a case against Mr. Krishnaswamy, I. C. S., and certain other persons, which is pending in the Court of sardar Gurdev Singh, a Special Judge at Delhi. On 22-51954 the Public Prosecutor made an application under Section 503, Criminal P. C., in which he prayed that the personal attendance of Mr. Munshi be dispensed with and that his evidence be recorded on commission as the presence of Mr. Munshi cannot be procured without causing much delay and inconvenience to the witness and without causing dislocation of his public duties as the Governor of an important State. Sardar Gurdev Singh was unable to accede to this request as he was of the opinion that a Special Judge appointed under the provisions of the Criminal Law Amendment Act, 1952, has no power to issue a commission under Section 503, Criminal P. C., and that even if he has that power this is not a fit case in which the said power should be exercised. The State Government has come to this Court in revision and the question for this court is whether the Court below has come to a correct determination in point of law.
(3.) There can be little doubt that it is within the competence of a Special Judge to direct that the personal appearance of a witness be dispensed with and that he should be examined on commission. Sub-section (1) of Section 503, is in the following terms:
"(1) Whenever, in the course of an enquiry, a trial or any other proceeding under this Code, it appears to a Presidency Magistrate, a District Magistrate, a Court of Session or the High Court 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 Magistrate or Court may dispense with such attendance and may issue a commission to any District Magistrate or Magistrate of the first class, within the local limits of whose jurisdiction such witness resides, to take the evidence of such witness." Sub-section (3) of Section 8, Criminal Law Amendment Act, 1952, runs as follows: "(3) Save as provided in Sub-section (1) or Sub-section (2) the provisions of the Code of Criminal Procedure, 1898, shall so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge, and for the purposes of the said provisions the 'Court of the Special Judge shall be deemed to be a Court of Session' trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a Public Prosecutor." If a Court of Session can exercise the powers conferred by Section 503 and if a Court of Special Judge appointed under the provisions of the Criminal Law Amendment Act is to be deemed to be a Court of Session, it is obvious that a Special Judge stands on exactly the same footing as a Sessions Judge and can exercise the same power under Section 503 as can be exercised by the latter. It is impossible to arrive at a contrary conclusion without indulging in a feat of mental gymnastics. The first question propounded at the commencement of this order must therefore be answered in the affirmative.;
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