- (1.) In the course of the trial of the opposite parties, Shambhu Nath Garg, President of the District Board Bulandshahr and four others, in the court of the Judicial Officer Anupshahr an application for issuance of a commission for examination of the Deputy Coal Commissioner (Distribution) Calcutta as a witness was made by the complainant Kedar Nath Bhargava on 27-3-1957. That application was rejected by the trial court on 18-4-1357. The complainant went up in revision to the learned Sessions Judge of Bulandshahr who has made the present reference Under Section 438, CrPC, recommending that the Magistrate's order be quashed and the commission for examination of the witness concerned be directed to be issued.
(2.) The opposite parties are being tried for offences punishable Under Section s. 409, 420 & 120B, IPC, on the allegation, inter alia, that they obtained 15 wagons of coal on the strength of a letter of sanction dated 14-7-1952 issued by the then Deputy Coal Commissioner (Distribution) Calcutta ostensibly for the purpose of the District Board, but that in point of fact the coal was not used for that purpose but was misappropriated. The interrogatories accompanying the application for issuing the commission show that the witness was sought to be examined to prove the said letter of sanction and certain other matters. The learned Sessions Judge has made the aforesaid recommendation on the ground that the witness was formal one and his attendance could not be procured without an amount of expense which in the circumstances of the case he considered to be unreasonable.
(3.) The relevant provision relating to is-suance of commission for examintion of a witness in criminal cases is to be found in S. 503, CrPC. An objection raised in this Court by the Learned Counsel for the opposite parlies was that no commission need be issued under that provision since evidence of a formal character may now be given by affidavit Under Section 510A newly added by the Code of Criminal Procedure (Amendment) Act XXVI of 1955. That section empowers the court of permit a party to give evidence of a formal character by affidavit and, if the court thinks fit, to summon the deponent at the instance for the opposite party for cross-examination as to the facts contained in the affidavit, but it does not empower the court to order either a party to give evidence of the aforesaid character by affidavit or any person to swear such an affidavit. That being so, where the party seeking to adduce such evidence does not wish or is unable, to avail himself of this otherwise convenient procedure, or where the person whose evidence is required is not willing to swear the affidavit, no question of recourse being had to the provisions of S. 510A of the Code arises. In the present case the Learned Counsel for the complainant was not agreeable to giving the required evidence by affidavit as he was not sure that the officer concerned at Calcutta would agree to swearing the affidavit merely on the request of the complainant. The objection of the Learned Counsel for the opposite parties to the issuance of commission on the basis of S. 510A of the Code is therefore untenable.;