Commissions for the Examination of Witnesses

In one line

Where a witness genuinely cannot be brought to court without unreasonable delay, expense or inconvenience, the court sends the examination to him instead of bringing him to the examination.

In exam wording: section 319 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers a Court or Magistrate, where the examination of a witness is necessary for the ends of justice and his attendance cannot be procured without unreasonable delay, expense or inconvenience, to dispense with his attendance and issue a commission for his examination.

Why the law has this at all

Because the ordinary rule, that a witness comes to court and is examined in front of the judge who will decide, has a price, and sometimes the price is too high.

A doctor in Kerala who examined a body once, in a trial in Nagpur. A businessman in Dubai. A woman who cannot travel. A prisoner the Government will not release. In each case the choice is between losing the evidence altogether and taking it somewhere else. The commission is the somewhere else.

What the Code does not do is make it easy. The test in section 319(1) has two limbs: the examination must be necessary for the ends of justice, and the attendance must be unprocurable without unreasonable delay, expense or inconvenience. Convenience alone is not enough.

Some words this chapter uses

A commission is an order of the court directing another court or officer to examine a witness and send back his evidence.

Interrogatories are written questions the parties send in advance for the witness to be examined on.

A deposition is the record of the witness's evidence taken on commission.

Just exceptions in section 323(1) means the ordinary objections to admissibility; a deposition read in evidence is still subject to them.

Section 319: when a commission may issue

Sub-section (1). Whenever, in the course of any inquiry, trial or other proceeding, it appears to a Court or Magistrate:

• that the examination of a 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,

the Court or Magistrate may dispense with the attendance and issue a commission for his examination.

The proviso. Where the examination of the President or the Vice-President of India, or the Governor of a State, or the Administrator of a Union territory as a witness is necessary for the ends of justice, a commission shall be issued.

Read that carefully. For everybody else the section says may; for these four offices it says shall. They are not to be summoned to a courtroom, and the two-limb test does not have to be satisfied: necessity alone triggers it.