Commissions for the Examination of Witnesses

Sub-section (2), the accused's costs. The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as it considers reasonable to meet the expenses of the accused, including the advocate's fees, be paid by the prosecution.

That sub-section exists because a commission moves the examination away from the court, and an accused who cannot afford to send his advocate to Kerala would lose his cross-examination. The State pays so that he does not.

Section 320: to whom the commission goes

Sub-section (1), within these territories. To the Chief Judicial Magistrate within whose local jurisdiction the witness is to be found.

Sub-section (2), elsewhere in India. Where the witness is in India but in a State or area to which the Sanhita does not extend, to such Court or officer as the Central Government specifies by notification.

Sub-section (3), outside India. Where the witness is in a country or place outside India with which the Central Government has made arrangements for taking evidence in criminal matters, the commission is issued in such form, directed to such Court or officer, and sent to such authority for transmission, as the Central Government prescribes by notification.

Sections 321 and 322: how it is executed

Section 321. On receiving the commission, the Chief Judicial Magistrate, or such Magistrate as he appoints, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may exercise the same powers, as in the trial of a warrant case.

So the commission is not an informal statement-taking. It is done with the powers and in the form of a warrant case trial, which means the section 310 rules on recording apply.

Section 322, the parties' rights.

Sub-section (1). The parties may forward interrogatories in writing which the Court directing the commission thinks relevant to the issue, and the Magistrate or officer executing it may examine the witness upon those interrogatories.

Sub-section (2), and this is the important one. Any party may appear before that Magistrate, Court or officer by an advocate, or, if not in custody, in person, and may examine, cross-examine and re-examine the witness.

That sub-section is what keeps a commission constitutional. The accused does not lose his cross-examination; it happens elsewhere. And the words "if not in custody" explain why section 319(2) provides for his advocate's fees: an accused in custody can only be there through counsel.

Sections 323 to 325: return, adjournment, and foreign commissions

Section 323(1), return. After the commission has been duly executed it is returned, with the deposition of the witness, to the Court or Magistrate issuing it. The commission, the return and the deposition are open at all reasonable times to the inspection of the parties, may, subject to all just exceptions, be read in evidence by either party, and form part of the record.

Sub-section (2). A deposition so taken, if it satisfies the conditions in section 27 of the Bharatiya Sakshya Adhiniyam, 2023, may also be received in evidence at any subsequent stage of the case before another Court. Section 27 of the Adhiniyam is the provision on evidence given in a former proceeding.

Section 324, adjournment. In every case in which a commission is issued, the inquiry, trial or proceeding may be adjourned for a specified time reasonably sufficient for the execution and return of the commission.

Section 325, foreign and other commissions. Sections 321, and so much of sections 322 and 323 as relate to execution and return, apply to commissions issued by:

(a) any Court, Judge or Magistrate exercising jurisdiction in an area in India to which the Sanhita does not extend, as the Central Government specifies; and (b) any Court, Judge or Magistrate exercising jurisdiction in a country or place outside India as the Central Government specifies, having authority under the law in force there to issue commissions for the examination of witnesses in criminal matters.

So the traffic runs both ways: our courts send commissions out under section 320, and receive and execute them under section 325.

A worked example

A Sessions Court at Nashik is trying a murder case. The post-mortem was done by Dr Menon, who has since retired to Thrissur in Kerala.

Can a commission issue? The Court must be satisfied of both limbs of section 319(1): that his examination is necessary for the ends of justice, which it plainly is, and that his attendance cannot be procured without unreasonable delay, expense or inconvenience. His age, health and the distance are the material.

To whom is it directed? To the Chief Judicial Magistrate within whose local jurisdiction Dr Menon is to be found, section 320(1).

How is it executed? That Magistrate, or one he appoints, summons Dr Menon or goes to him, and takes his evidence in the same manner and with the same powers as in a warrant case trial, section 321.

What can the accused do? He may send written interrogatories which the Nashik Court thinks relevant, section 322(1); and he may appear by an advocate, or in person if he is not in custody, and examine, cross-examine and re-examine, section 322(2).

He cannot afford to send counsel to Kerala. Because this is a prosecution witness, the Court may direct the prosecution to pay a reasonable amount to meet his expenses, including his advocate's fees, section 319(2).

What happens meanwhile? The trial may be adjourned for a specified time reasonably sufficient for execution and return, section 324.

When it comes back. The commission, the return and the deposition are open to inspection, may be read in evidence by either party subject to all just exceptions, and form part of the record, section 323(1).

The case is later retried before another Court. The deposition may be received in evidence there if it satisfies section 27 of the Bharatiya Sakshya Adhiniyam, section 323(2).

Change the witness. The evidence of the Governor of a State is necessary. Then no test of unreasonableness arises: a commission shall be issued, proviso to section 319(1).

Change it again. The witness is in a country with which arrangements have been made. The commission issues in the form, to the Court, and through the authority the Central Government prescribes, section 320(3).

Distinctions

What this does NOT mean

A commission is not a convenience. Section 319(1) requires the delay, expense or inconvenience of procuring attendance to be unreasonable in the circumstances.

It does not deprive the accused of cross-examination. Section 322(2) preserves it, in person or by advocate, and section 319(2) provides for the cost where the witness is the prosecution's.

A returned deposition is not automatically admissible for everything. It may be read subject to all just exceptions, and its use in a later proceeding depends on section 27 of the Bharatiya Sakshya Adhiniyam.

And section 325 does not let any foreign court's commission be executed here. The Court, Judge or Magistrate must be one the Central Government has specified by notification, and must have authority under its own law to issue such commissions.

Quick revision

• 319(1): commission where the examination is necessary for the ends of justice and attendance cannot be procured without unreasonable delay, expense or inconvenience. Proviso: a commission SHALL issue for the President, Vice-President, a Governor or an Administrator of a Union territory.
• 319(2): for a prosecution witness, the Court may direct the prosecution to pay the accused's expenses including advocate's fees.
• 320: to the Chief Judicial Magistrate where the witness is; to a notified Court or officer elsewhere in India; and in the prescribed form through the prescribed authority abroad.
• 321: the Magistrate summons the witness or goes to him, and takes the evidence as in a warrant case trial, with the same powers.
• 322: parties may send interrogatories, and may appear by advocate, or in person if not in custody, to examine, cross-examine and re-examine.
• 323: the commission, return and deposition are returned, open to inspection, readable in evidence subject to just exceptions, and part of the record; usable later under section 27 of the Bharatiya Sakshya Adhiniyam.
• 324: the proceeding may be adjourned for a time reasonably sufficient for execution and return.
• 325: sections 321 to 323 apply to commissions issued by notified courts in areas of India where the Sanhita does not extend and outside India.

Test yourself

1. What two things must a Court be satisfied of before issuing a commission? That the examination of the witness is necessary for the ends of justice, and that his attendance cannot be procured without an amount of delay, expense or inconvenience which in the circumstances would be unreasonable, section 319(1).

2. Whose evidence must always be taken on commission? That of the President or Vice-President of India, the Governor of a State, or the Administrator of a Union territory, where their examination is necessary for the ends of justice; the proviso to section 319(1) says a commission shall be issued.

3. Who pays for the accused to be represented at a commission? Where the commission is for a prosecution witness, the Court may direct the prosecution to pay such amount as it considers reasonable to meet the accused's expenses, including his advocate's fees, section 319(2).

4. To whom is a commission directed where the witness is within these territories? To the Chief Judicial Magistrate within whose local jurisdiction the witness is to be found, section 320(1).

5. In what manner is the evidence taken on commission? In the same manner, and with the same powers, as in the trial of a warrant case under the Sanhita, section 321.

6. What may the parties do at the examination? Forward written interrogatories which the issuing Court thinks relevant, and appear by advocate, or in person if not in custody, to examine, cross-examine and re-examine the witness, section 322.

7. Can the deposition be used in a later proceeding? Yes, if it satisfies the conditions in section 27 of the Bharatiya Sakshya Adhiniyam, 2023, it may be received in evidence at any subsequent stage of the case before another Court, section 323(2).