S.284 CrPC | Court Must Prevent Miscarriage Of Justice While Examining Witness On Commission Incapable Of Attending Proceedings: Delhi HC

The Delhi High Court has observed that in cases involving question of examining a witness on Commission wherein such a witness is disabled or otherwise not in a position to attend Court, the Court has to exercise its power to examine the witness to see that no miscarriage of justice takes place.

"The question of examining the witness on Commission arises in the case where such a witness is disabled to attend the Court due to old age or hazardous condition of her health, not in a position to move about or the witness is incapable of attending the Court for any other reason. In such cases, the Court has to exercise its power to examine the witness to see that no such miscarriage of justice does takes place," Justice Swarana Kanta Sharma observed.

The Court added that where it is not possible for a witness to attend the Court, a procedure is prescribed under sec. 284 of CrPC to examine the witness by the Court Commissioner.

"A reading of Section 284 CrPC makes clear that where a witness could not be procured before the Court and that it is so essential to meet the ends of justice, such witness can be examined through a Commissioner," the Court added.

The Court was dealing with a plea seeking quashing of the order passed by the Metropolitan Magistrate in a complaint case filed under sec. 138 read with sec. 141 and 142 of the Negotiable Instruments Act.

When the impugned order was passed, the complainant (respondent no. 1 in the petition) informed the Trial Court that she was suffering from serious ailments and was not able to conduct the case personally. It was submitted that she had authorised her son as Special Power of Attorney holder to conduct the prosecution on her behalf with the permission of the Court.

The petitioner thus contended before the High Court that there was no clause in the SPA which authorized the SPA Holder to lead evidence on behalf of the complainant. It was however submitted that in case the complainant was unwell or infirmed, the Court can appoint a Commission which ought to have been done in view of sec. 142(1)(a) NI Act, which prohibits a Court from taking cognizance of any offence punishable under sec. 138 NI Act except upon a written complaint by the payee or holder in due course of the cheque.

The petitioner submitted that the Trial Court, after perusing the SPA and documents, granted permission to the SPA Holder to prosecute the matter on complainant's behalf and directed him to file his evidence on affidavit.

It was however the respondents case that the complainant being an old lady, aged about 74 years, was suffering from "Severe Rheumatoid Arthritis with Spinal Scoliosis" due to which she was unable to personally attend to her cases pending adjudication before various Courts.

It was further stated that she executed SPA in favour of her son as he was also a joint allottee in the cases and also was well acquainted with the transactions as well as the facts and circumstances.

The Court thus allowed the petition and set aside the impugned order and consequent order passed by the Trial Court partially only to the extent of permitting the complainant to be cross-examined through appointment of a Commission.

The Trial Court was directed to proceed in accordance with law, as provided under sec. 284 CrPC and to pass an appropriate order, upon an application being filed, for appointment of Commission for cross-examination of the complainant.

"The learned Trial Court will be at liberty to examine the fact as to whether the SPA filed by the SPA holder is as per law at the appropriate stage as deemed fit by it. The SPA holder is allowed to continue with the trial, as already held by the learned Trial Court," the Court said.

The plea was thus disposed of.

Title: JEEVESH SABHARWAL v. ARUNA GUPTA & ANR.

Citation: 2022 LiveLaw (Del) 846

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