Judgment

P. JAGANMOHAN REDDY, J.: This Appeal is by Special Leave against the Judgment of Division Bench of High Court of Bombay which while directing "that the prosecution must pay to each of the accused Nos. 1, 3, 4, 5, 6 and 7 the tourists class air fare for one lawyer plus Rs. 100/- per day for the expenses of the stay of the lawyer in Germany for executing the Commission " . ... . .... denied to accused No. 2 the Appellant before us, the same facility. The High Court had in fact stated that the Appellant will not be entitled "to be paid anything at all in respect of the expenses that he will have to incur if he chooses to be represented by a lawyer for the purpose of cross-examining the prosecution witnesses who will be examined on Commission in Germany, as there is a concluded finding of fact that he had intimidated and tampered with the German witnesses both of the High Court as also of the SC." The Special leave petition also raised severat other questions of law which were stated to be important namely whether the High Court had power to issue Commission on an interlocutory application in a revision application against the discharge of an accused person, whether it was entitled to grant an application for Commission when a similar application was rejected by another Bench of the same High Court on the merits and substantially on the same facts, whether the case falls within the provision of S. 503 Criminal Procedure Code for issue of a Commission and if not whether the High Court has inherent jurisdiction to enlarge the scope of the Section on the ground that there is a lacuna in the said provision which can be filled in by the exercise of the inherent jurisdiction of the High Court and other legal points which it is unnecessary to recapitulate. When this application came up for consideration this Court by an order dated 25-8-70 limited the Special leave only to the question "whether the order of the High Court refusing to allow any expenses for the lawyer of the Petitioner to be taken to Germany is justified or not justified." Subsequent to the filing of this Appeal another accused namely accused 3 Sibal also filed an application for grant of Special leave against this very same order in which the order of the High Court has been challenged on various grounds including the ground that the amount allowed for expenses of the applicant was insufficient and that while the order by the Magistrate directing the accused to be discharged which order was confirmed by the High Court in earlier proceedings, was still operative, the learned Judges had no power to pass any orders appointing a Commission for examination of witnesses abroad. Some of these grounds it will be seen are similar to those raised in the Special Leave Petition filed by the Appellant where as we noticed earlier leave was limited to the question whether the High Court was justified in disallowing the expenses and air fare to the Appellant s lawyer. The learned Advocate for the Appellant though he sought to extend the scope of the Appeal, we have confined his submission only to that limited question.

2. In order to understand the nature of the order and the circumstances in which it was passed it is necessary to set out briefly the history of this prosecution which demonstrates a striking example of the manner in which the provisions of law designed to ensure a fair, and speedy trial have been taken full advantage of to prolong and procrastinate and in fact negate the main purpose of criminal justice namely an expeditious trial. The 7 accused including the Appellant as Accused 2 and the petitioner in sepcial leave petition accused 3 are being tried for an offence under Section 120B of Indian Penal Code read with Section 167 (81) of the Sea Customs Act, 1878 and Section 5 of the Exports & Imports Control Act, 1947. The offences with respect to which this prosecution has been lodged are said to have been committed between August 1957 and March 1960 by the 7 accu