The court's discretion in determining the formal character of evidence under Section 510-A of the Criminal Procedure Code is not absolute and must be exercised judiciously, considering the nature of the evidence and the circumstances of the case.

( 1 ) IN C. C. No. 6593 of 196g, on the file of the Third City Magistrate, Hyderabad a petition was filed on behalf of the prosecution Under Section 510,a, Criminal Procedure Code, praying that the evidence of the witnesses namely (1) Sri S. R. Y. Sivarani Prasad Bahadur Raja of Challa-palli, Honble Minister for Public Health Hyderabad and (2) Sri M. Krishnaiah Shetty, I. P. S, Deputy Director Central Intelligence Bureau, Madras, may be permitted to be given by way of affidavits. It was also stated therein that these witnesses are of a high rank and status, that their evidence is of a formal character and that the allegations contained in Ex. P-26 were not germane to the inquiry as their evidence is only to deny some of the allegations in Ex. P-26. It was further stated that as witnesses Nos. 10 and 13 cited in the list of witnesses were not cross-examined by the defence, the witnesses whose evidence is sought to be given by affidavits are also of the same nature.

( 2 ) THIS petition was opposed by the defence on the ground that the evidence of these witnesses is not of a formal character and, therefore, in view of the provisions of Section 510-A Criminal Procedure Code their evidence cannot be permitted to be given by way of affidavits. The learned Magistrate posed a question for consideration namely whether the witnesses proposed to be examined by the prosecution tan give their evidence by filing affidavits Under Section 510-A Criminal Procedure Code and ultimately he came to the conclusion that in order to expedite the disposal of a case against a person the Court must take the evidence by entertaining affidavits of witnesses if put in by the prosecution.

( 3 ) SECTION 510-A Criminal Procedure Code was introduced by the Amending Act (No. 26 of 1953) and it reads as follows:- (1) The evidence of any person whose evidence is of a formal character may be given by an affidavit and may subject to all just exceptions, be read in evidence in any inquiry trial or other proceeding under this Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such persons as to the facts contained in his affidavit. " This mode of giving evidence in a criminal trial is a departure from the usual method and there is no doubt that it is meant to accelerate the disposal of cases. In Sub-section (1) stress is given to the words "formal character" of a witness and it does not speak of his rank or status. Under Sub-section (2) even it the Court permits the evidence to be given by way of an affidavit and at a later stage if it think fit, it may summon and examine any such person whose affidavit has been filed as evidence but on the application of the prosecution of the accused, it shall summon and examine any person as to the facts contained in his affidavit

( 4 ) THE contention of the learned counsel for the petitioner is that the witnesses whose evidence is sought to be filed by way ot affidavits by the prosecution are not of a formal character and the truth or falsity of the allegations made in Ex. P-2g baa to be considered for a just decision of the case. According to the learned counsel it is the case of the prosecution that the allegations are false and the evidence of the said witnesses in this context is very important. The learned counsel refers me to page 1145 of Strouds Judicial Dictionary. Volume 2, (Third Edition) wherein it has been mentioned that an allegation in an indictment which must be proved as alleged, cannot be called formal and it is urged that the defence has to answer the charge made in Ex. p-26 that the allegations are false.

( 5 ) ON the other hand, the learned Advocate-General contends that the prosecution is at liberty to file the affidavit of any witness cited and it is not the stage at which the Court should consider whether the evidence of a witness whose affidavit has been filed is of a formal character He further contends that i