Point of Law: If the witness is within the territories to which the Code extends, the Commission issued by the Court or Magistrate shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate within whose jurisdiction the witness is to be found.

ORDER :

The order passed by Judicial First Class Magistrate Court, Kochi ( for short 'the court below') on 20. 11.2021 in C.M.P. No.36/2021 is assailed in the petition on hand. The order reads :

“Heard the counsel for both sides. CMP 36/21 filed before this court for appointing a commissioner. This court is not empowered to appoint a commissioner for examination of witness as per the permission of Cr.P.C. Hence the petitioner is directed to approach the authority concerned as per the rules for appointing the commissioner under the permission of Cr.P.C for examining the witness. For evidence to 01.12.2021.”

2. By the order above, the court below has dismissed an application filed by the petitioner seeking for appointment of a Commission for examination of witness No.2 in the witnesses list dated 16.3.2021 under Sections 284(1) and 285(1) of the Code of Criminal Procedure, 1973 (for short 'the Code') for the reason that it is devoid of jurisdiction under the Code to appoint a commission. The court below has also directed the petitioner by the impugned order to approach the authorities concerned as per the Rules for appointing the Commission under the provisions of the Code for examination of a witness. The relevant provisions dealing with the appointment of a Commission for examination of a witness and the procedure to be followed on such appointment being made are contained in Sections 284 to 286 of the Code. The relevant provisions are extracted hereunder to have a clear idea about it.

“Section 284 (1) When attendance of witness may be dispensed with and commission issued - (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:

Provided that 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 for the examination of such a witness”.

Section 285. Commission to whom to be issued. (1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.

(2) If the witness is in India, but in a State or an area to which this Code does not extend, the commission, shall be directed to such Court or officer as the Central Government may, by notification, specify in this behalf.

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission, as the Central Government may, by notification, prescribed in this behalf.

Section 286 Execution of commissions--Upon receipt of the Commission, the Chief Metropolitan Magistrate, or Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, 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 for this purpose exercise the same powers, as in trials or warrant -cases under this Code.”

3. Under Section 284 (1) if it appears to a Court or Magistrate during the course of any inquiry, trial or other proceedings under the Code, that examination of a witness is necessary fo