1. This case has had a long and chequered career in the course of which it has paid brief visits to the Supreme Court thrice. The facts of the prosecution case as well as the proceedings are somewhat complicated, but will have to be set out for the purpose of deciding the present application. The accused persons, who are seven in number, are alleged to have committed offences under Section 120B of the Indian Penal Code read with Section 167(81) of the Sea Customs Act, 1878 and Section 5 of the Imports and Exports Control Act, 1947, some time in 1959-60. The main brain and the principal party to the offences was one Nanda who died on September 15, 1960. There were several business concerns, the composition of which it is necessary to set out for the purpose of the present case. One was the Eastern Trading Corporation, whose proprietor was the said Nanda, and manager accused No. 1 who was a nephew of the said Nanda, but accused No. 2 held a power--of-attorney to operate the bank account of the said concern with the Hongkong and Shanghai Bank. The second concern to which reference must be made is the one called Shantilal Chhaganlal & Co. in which accused No. 2 was one of the partners. The third concern was Hind Trading Service in which Nanda and accused No. 1 were partners. The fourth concern was named Suresh Trading Co., of which the proprietor was accused No. 8 who resided permanently at Delhi, but accused No. 2 held a general power-of-attorney not only to operate the bank account of the said concern, but to manage its entire affairs. The fifth concern was D. Deepak & Co. of which the proprietor was one Desh Deepak who also resided permanently at Delhi and from whom also accused No, 2 held a comprehensive power-of-attorney to manage the entire affairs of the said concern and to operate its bank account. The sixth concern was Raj Trading Co. of which the proprietor was Nanda and the manager his nephew, accused No. 1. It may be mentioned that the business address of the Eastern Trading Corporation, the Hind Trading Service and the Raj Trading Co. was the same viz. 110 Himalaya House, Paltan Road, Bombay. The business address of the remaining concerns was different from that address, but was also the same inter se, viz., 397 Sk. Memon Street, Bombay, It may further be mentioned that there was a concern named Kokate Bros. who were doing business as clearing agents at 9, Ash Lane in Bombay of which the proprietor was accused No. 4, accused Nos. 5 and 6 being its employees.
2. To Criminal Revision Application No. 565 of 1969 which, it may be stated, was heard along with the present application, was annexed and marked 'A' by the prosecution a detailed schedule of the various shipments cleared by the said firm of Kokate Bros., in respect of which the accused persons are alleged to have committed the offences in question. It is the case of the prosecution that in respect of the first item in that Schedule the procedure which was later on improved upon by the accused persons was as under :
3. The real importer in respect of that shipment was accused No. 2 in the name of Shantilal Chhaganlal, acting in concert with the said Nanda. The prosecution case is that the other accused persons, however, also played a part in it. Out of the 49 cases imported under the shipment covered by item No. 1 in the said schedule, 14 cases contained contraband goods, and the rest of the cases contained goods of trifling value covered by the import license in respect of the said shipment. The said shipment was transferred in due course to Hind Traders. Four Verladeschines, which the prosecution has stated were Mate's Receipts though the defence alleges otherwise, were prepared by the forwarding agent in Germany, one of which covered the 14 cases of contraband goods sent by that shipment. The bill of lading, however, wrongly showed all the goods imported under those shipments as being goods covered by the licence. The procedure in regard to the same which was followed in Germany will be set out in this judgment hereafter. All goods under the said shipment were taken delivery of under the bill of lading prepared as aforesaid. The prosecution case is that this procedure was, however, found somewhat risky by the accused persons and the said Nanda, as the Customs authorities, who used to pick at random and open cases for the purpose of checking, might happen to open one or other of the 14 cases containing the contraband goods, in which case the offence would be detected.
4. The prosecution case is that the accused persons and the said Nanda, therefore, improved upon the procedure followed by them for the purpose of committing the offences in question, and Items Nos. 2 to 10 of the said Schedule relate to the procedure as so improved. The improved procedure which was evolved was that two consignments of goods were sent from abroad by the same ship, one of which was of a lesser quantity, just by a few cases, and the consignment containing the lesser quantity always contained the contraband goods. The other consignment would contain goods which were covered by the import licence. The two consignments would have on them marks which were nearly identical e.g. ZTC & ZIC, or KTL & KIL, the difference being such that with a slight touching up of the middle letter of the mark they would become identical. The shipping documents which would come through a bank to India would, however, be only for the consignment with the larger number of cases which contained goods covered by the licence under which the import was made, but no shipping documents would ever come or be filed with the Customs in respect of the shipment containing the lesser number of cases which comprised the contraband goods. When the Customs appraisers concerned called at random for examination of some of the cases, cases were picked by the servants and agents of the accused persons only out of the larger consignment which contained goods which were in accordance with the licence. After they were so checked, the marks were altered whilst the goods were in the Port Trust shed e.g. ZTC would be altered to ZIC, and ZIC to ZTC. The accused persons would then remove the entire quantity of contraband goods, plus 2 or 8 cases extra out of the genuine goods in order to make up the actual quantity of the shipment relating to the larger consignment. The remaining goods which were in fact goods covered by the licence and were of trifling value were never removed from the Port Trust shed by the accused persons and remained abandoned there. That, in fact, was what aroused the suspicion and curiosity of the customs authorities, and ultimately led to the detection of the offences in question.
5. Realising this infirmity in the procedure followed by them, according to the prosecution, the accused persons improved upon their technique still further, and items 11 to 15 of the said Schedule were imported under this further improved technique. Under this new technique, according to the prosecution, the entire procedure followed would be the same as has just been described by me, with this difference, that shipping documents relating to the smaller consignment containing the contraband goods, made out as if they were in respect of the goods covered by the licence, did come to India several months later. By that time, the actual contraband goods would already have been removed together with a few cases out of the licenced goods as already stated above. The remaining goods then were also removed under the said shipping documents, instead of being abandoned as had been done till then.
6. A still further improvement was thereafter made, according to the prosecution, by the accused persons in the procedure followed by them, and that was, that instead of having nearly identical marks on the two shipments coming by each ship, the marks were exactly identical, and that was the procedure followed in respect of items 16 to 24 of the said Schedule. It may be mentioned that, by then, the customs authorities had however become wiser and the last four shipments viz. those covered by items Nos. 21 to 24 of the said Schedule were, in fact, intercepted by the customs authorities. According to the prosecution, the accused persons were caught redhanded in respect of the shipment which is item No. 21 in the said Schedule, but when items Nos. 22 to 24 arrived, the accused persons did not present the shipping documents at all in view of the fact that the offence had already been detected in respect of the shipment to which item No. 21 related.
7. It is the case of the prosecution that in this manner the accused persons have succeeded in importing contraband goods into India of the value of about rupees fifty lakhs in the course of the year 1959-60. It will, however, be necessary for me, for the purpose of disposing of the present application for evidence being taken on commission in Germany, to outline in some detail the procedure which, according to the prosecution, was followed in Germany for the purpose of effectuating the fraud and committing the offences in question. A document called the Verladeschines, which the prosecution states is a Mate's Receipt, was prepared by the forwarding agents of the exporter or manufacturer at Hamburg who, however, did not actually handle the goods. They filled in the description of the goods in the Verladeschines on the instructions of the exporter or the manufacturer, as the case might be. The Verladeschines was then sent to the ship, which would also be at Hamburg, and was handled by the tally clerk of the agents of one of the three shipping lines by which the goods in this case were shipped. Those shipping lines were, (1) The Hansa Line which was a German shipping company; (2) The Indian Steamship Company Ltd. and (3) The Scindia Steamship Navigation Co. Ltd., both of which were Indian shipping companies. The prosecution case is that the tally clerk of the agents of the shipping line concerned filled in the Verladeschines the weight, the measurements and the place in the ship where the goods were stored. The procedure followed by tally clerks of the agents of the Hansa Line was to initial or hook (tick) the Verladeschines after making those entries. As far as the agents of the other two shipping lines were concerned, the procedure, however, was for the captain of the ship himself to endorse the receipt of the goods on the Verladeschines and to sign on it. The prosecution story is that, in the meantime, the bill of lading would be prepared by the forwarding agents of the exporter for the manufacturer and, when the same was ready, the forwarding agents sent the bill of lading directly to the agents of the shipping line concerned. It is the case of the prosecution that one of the clerks of the forwarding agents who prepared the bill of lading, and the exporter or manufacturer, as the case may be, were co-conspirators of the accused persons in the present case and their statements are admissible under Section 10 of the Indian Evidence Act. The prosecution case is that it was with their assistance, that the Verladeschines was prepared in respect of valuable contraband goods, whilst the bill of lading was prepared in respect of the goods actually shown in the import licence granted by the Government of India which were of negligible value. After being initialed or hooked by the tally clerk, or signed by the Captain, as the case might be, the Verladeschines would be sent from the ship to the office of the agents of the shipping line, and would remain with them for all time. On receiving the Verladeschines at their office, those agents would hand over the bill of lading to the forwarding agents of the exporter or manufacturer, but, according to the prosecution they would only check the number and the marks, and not the description of the goods, before they parted with the bill of lading to the forwarding agents. The bill of lading, together with the invoice prepared by the exporter or manufacturer, and the insurance policy, which would be called shipping documents or documents of title to goods, would be sent through a bank, in the normal course, and would be retired by the importer, on payment, for the purpose of taking delivery of the goods in India, but the Verladeschines would ordinarily never come to India. It would remain with the agents of the shipping line in Germany.
8. In the present case, however, at the instance of the customs authorities, when their suspicion was aroused by reason of the abandonment of the various consignments, the Verladeschines was obtained from the agents of the shipping lines in Germany. It may be mentioned that Shaw Wallace & Co. were the agents of Hansa Line in Bombay which, as already stated above, is a German Shipping Company, but the other two shipping lines being Indian shipping companies, had no agents in Bombay and handled all matters in Bombay at their own office. At the request of the customs authorities in the present case, Shaw Wallace & Co. and the India Steamship Co. Ltd, as -well as the Scindia Steamship Navigation Co, Ltd., got the Verladeschines from the agents of the said shipping lines at Hamburg. Considerable correspondence took place in that connection. That correspondence was sought to be tendered at a prior stage of these proceedings, but was ruled out as inadmissible by a judgment delivered by my brother Gokhale on August 19/20, 1964. The application for special leave to appeal from the same being dismissed by the Supreme Court on January 27, 1966, the present application for taking evidence on commission in Germany has, inter alia, been made for the purpose of proving the said correspondence, as well as the signatures on and the contents of the Verladeschines relating to the shipments in question. It may, however, be mentioned that by the evidence which is sought to be led on commission, the prosecution also desires to prove the entire shipping procedure followed in Germany which has just been described by me.
9. It will be necessary for me to deal now with the various proceedings that have already taken place in the present case which have led up to the present application for commission. The complaint in this case was filed on April 1, 1961, and the hearing of the case actually started on February 12, 1962 in the course of which over a hundred prosecution witnesses were examined. On December 12,1962, the prosecution closed its case before the framing of the charge, all the Verladeschines having been admitted in evidence except in respect of item No. 1 in the Schedule referred, to above. On December 21,1962, charges were framed against the accused persons in respect of those shipments in regard to which the Verladeschines had been obtained by the prosecution showing that contraband goods had been imported thereunder, except in respect of item No. 1 in the said Schedule though the prosecution had obtained a Verladeschines in respect thereof. As the prosecution had failed in regard to item No. 1 in the said Schedule, it filed Criminal Revision Application No. 107 of 1963 in this Court which was heard by my brother Gokhale (as he then was) and was disposed of by him on August 19/20, 1964. The said Criminal Revision Application was dismissed by my brother Gokhale in respect of the Verladeschines relating to item No. 1 of the said Schedule. What is more, the learned Judge proceeded to hold that all the other Verladeschines admitted by the Magistrate had been wrongly admitted by him as the same were not admissible under Section 10 or under Section 32(2) of the Indian Evidence Act, or under the Commercial Documents Act, 1939. The prosecution applied for special leave to appeal to the Supreme Court, but that application itself was dismissed by the Supreme Court on January 27, 1966, as already stated above.
10. On March 3, 1966, the case was revived before the Magistrate on the application of accused No. 2, but was adjourned from time to time for the purpose of enabling the prosecution to bring witnesses from Germany. On August 12, 1966, accused No. 1 filed Criminal Application No. 1108 of 1966 in this Court to quash the proceedings before the trial Magistrate, but the same was withdrawn on October 14, 1966 when my brothers Patel and Paranjape gave three months' more time to the prosecution to call the witnesses from Germany who were to be examined as additional witnesses. Thereafter, there was some delay in proceeding with the case by reason of the trial Magistrate being on leave. It is the case of the prosecution that it was thereafter prevented from securing the presence of the witnesses from Germany by reason of the threats held out by accused No. 2 and the prosecution, therefore, filed Criminal Application No. 24 of 1967 in this Court to cancel the bail of accused No. 2. A Division Bench consisting of my brothers Chandrachud and Wagle, by its Order dated March 6, 1967 cancelled the bail of accused No. 2, as it found that accused No. 2 had been intimidating and tampering with the witnesses for the prosecution who were intended to be called from Germany for the purpose of the present case. Accused No. 2 filed an appeal to the Supreme Court from Order cancelling his bail, but the Supreme Court dismissed that appeal on May 4, 1967 (69 Bom. L.R. 855), holding that the High Court had inherent power to cancel the bail of an accused person (at pp. 856-57), and that though the finding of the High Court that accused No. 2 was intimidating and tampering with the German witnesses was sought to be challenged by him, having heard full arguments, the Supreme Court was not inclined to interfere with the findings of the High Court (at p. 858). The Supreme Court took the view that there was, however, delay on the part of the. prosecution in the matter of examination and cross-examination of the German witnesses and therefore directed that accused No. 2 should be released on bail on June 26, 1967, whether or not, the prosecution examined the said witnesses by that date. The position, therefore, is that question as to whether accused No. 2 had intimidated and tampered with the German witnesses is concluded by a finding of this Court which has been confirmed by the Supreme Court and, in my opinion, it is not open for us to reconsider the same.
11. The further course of the proceedings in this case is somewhat important for the purpose of the present application for commission, as this application has been strongly opposed on the ground of inordinate delay on the part of the prosecution in proceeding with the case, On June 26, 1967, the prosecution applied to the trial Magistrate to proceed with the cross-examination of the witnesses .who had been examined before the framing of the charges without waiting for the application to be made for the issue of a commission for the examination of the foreign witnesses. That application was opposed by the defence. That course was not followed by the learned Magistrate, and ultimately on July 10, 1967 the prosecution made an application to the trial Magistrate for the issue of a commission for the examination of its witnesses in Germany. That application was, however, refused by the trial Court on August 8,1967. From the order of the trial Magistrate refusing to issue the said commission, the prosecution approached this Court in revision (Revision Application No. 882 of 1967), but the same was dismissed by a Division Bench consisting of my brothers V. S. Desai and Wagle on August 9, 1968. It may, at this stage, be stated that, as recorded in the judgment of the said Bench delivered by my brother Wagle, at the outset of the hearing before the said Bench, Mr. Khandalawala had stated that the prayer for the issue of a commission to a German Court was not pressed by the prosecution as there were difficulties which could not be got over and our own Government was not prepared even to make an ad hoc reciprocal arrangement for that purpose which would satisfy the German Court and authorities. Mr. Khandalawala has stated before us that none of the forwarding agents were prepared to allow their witnesses to be sent to London for the purpose of their being examined on commission there, but the agents of the three shipping lines were prepared to do so and he had, therefore, pressed at the hearing of the said Revision Application before my brothers V. S. Desai and Wagle that he should be allowed to examine only the witnesses on behalf of the said shipping agents in London. Even that application was, however, rejected by the Division Bench on the ground that in the lengthy petition which was made before them, though the entire history of the prosecution was given, no mention was made of the particular witnesses who were to be examined and what they proposed to state. The learned Judges, therefore, came to the conclusion that, in the form in which the petition was made, it was not possible for them to grant the application for the examination in London of the witnesses on behalf of the agents of the shipping lines. The entire judgment of the Division Bench in the said case -was based on the fact that sufficient material had not been placed before the Court to enable them to come to the conclusion that it was necessary for the ends of justice to issue a commission for the examination in London of the German witnesses in question. I do not accept the argument that was sought to be advanced before us that the said judgment precludes us from considering the present application for commission which is based on the detailed material that has now been placed before the Court in the Revision Application. The prosecution applied to the Supreme Court for special leave to appeal from the decision of my brothers V. S. Desai and Wagle, but that special leave application was allowed to be withdrawn by the Supreme Court on November 4, 1968 after the Supreme Court had perused the petition and heard the arguments in regard to the same. On December 2, 1968 the prosecution applied to the trial Magistrate to examine the witnesses who were in India, but that application was rejected on January 9, 1969. By its Order dated February 26, 1969, the trial Magistrate held that no case was made out against accused Nos. 2, 8 and 7 and he, therefore, held them not guilty of any of the offences alleged against them and ordered them to be discharged. The trial Magistrate further held, by the said order, that out of the charges framed by him against the remaining accused Nos. 1, 4, 5 and 6, charges Nos. 2 to 9 should be deleted as the Verladeschines in regard to the same were in admissible and had not been proved against the said accused persons. It is from the said order of the trial Magistrate dated February 26, 1969 that the prosecution has filed Criminal Revision Application No. 565 of 1969 on June 12, 1969 for setting aside the said order of discharge in favour of accused Nos. 2, 3 and 7, as well as the said order deleting charges Nos. 2 to 9 against the remaining accused persons Nos. 1, 4, 5 and 6, and for other ancillary reliefs. That Revision Application was heard by us along with the present application, but in the view that we take on the present application, it is not necessary to pass any final orders on Criminal Revision Application No. 565 of 1969 for the present.
12. It appears that the prosecution had, in the meantime, been making efforts through the Government of India for a reciprocal arrangement for examination of witnesses on commission being entered into between our country and Germany and some time in August 1969, the prosecution was informed that such an arrangement had been arrived at, though the same had not been notified till then. It was in those circumstances that the prosecution filed the present application on August 25, 1969 for the examination of its witnesses on commission in Germany, giving the details of the witnesses who were proposed to be examined and the points on which their evidence was sought on commission, By a notification dated September 9, 1969, published in the Gazette of India of September 13 1969, it was notified that as arrangements had been made by the Central Government with the Government of the Federal Republic of Germany for the taking of evidence of witnesses residing in the Federal Republic of Germany in relation to criminal matters in Courts in India, the Central Government, in pursuance of Sub-section (3) of Section 504 of the Code of Criminal Procedure, thereby directed that commissions from Courts in India for the examination of witnesses in the Federal Republic of Germany were to be issued to certain Courts specified therein.
13. Three main questions arise on the present application, and they are as follows:-
I. Is the present application covered by the terms of Section 503 of the Code of Criminal Procedure and maintainable under that section ?
II. Does the High Court have an inherent power to issue a commission for the examination of witnesses under Section 561A of the Code of Criminal Procedure in cases which do not fall under the terms of Section 503 of that Code ?
III. If the Court has the power to issue a commission, either under Section 508 or under Section 561A of the said Code, should that power be exercised and a commission issued on the facts of the present case ?
14. As far as question No. 1 formulated by me above is concerned, as it was a question of considerable importance, at our request Mr. Mehta has taken us in chronological order through, what he has stated to be, all the reported decisions of Indian Courts on Section 503. It is, however, not necessary for me to discuss all those cases in detail, because none of them purport to give a definition or lay down the scope of the terms 'delay', 'expense' or ' inconvenience' in Section 503, and what is more, none of them deal with the question of examining on commission a witness in a foreign country. In fairness to Mr. Mehta, I must, however, offer very briefly my comments in regard to each of the cases cited by him, though I will not necessarily deal with them in chronological order, but would prefer to consider them in such order as is convenient for the purpose of the present discussion. The decisions reported in the Matter of the Petition of Farid Un-Nissa I.L.R.(1882) All. 92. In the Matter of the petition of Basant Bibi I.L.R.(1889) All. 69, Lachhmi Lal v. Emperor A.I.R. Pat. 40, Mahomed v. Bacho A.I.R. Sind 56, and Om Prakash v. State , were all decisions relating to applications for the examination on commission of pardahnashin ladies, and the decisions in those cases were governed by considerations which were peculiar to the custom observed by such ladies. One principle which, however, can be gleaned from those cases is that, even in the case of pardahnashin ladies, if such a lady was an eye-witness to a serious offence, or was herself the complainant, commission would not be issued for her examination. It may further be mentioned that in the decision reported in Om Prakash v. State, it has been laid down (para. 5) that for the purpose of Section 503 of the Criminal Procedure Code, the inconvenience that has to be considered by the Court is not only the inconvenience to the parties, but also to the witness who is to be examined and that the word 'inconvenience' which occurred in the said section was very wide in its import, as what was not convenient was inconvenient. It may further be pointed out that the decision reported in the Matter of the petition of Farid-Un-Nissa was a decision given prior to the enactment of the present Code of Criminal Procedure. With these observations, I do not think it necessary to discuss this bunch of cases in detail, cases which in fact merely proceed to lay down what, as a matter of convenience, should be done by Courts in the matter of the examination of pardahnashin ladies as witnesses, and is of no assistance for the purpose of determining the true interpretation of Section 503. Of the cases cited by Mr. Mehta, the decisions in the case reported in Empress v. Counsel I.L.R. (1882) Cal. 896, and State of Vindhya Pradesh v. Harol Lal 9 A.I.R. V.P. 8, were cases in which the trial was by jury or assessors, and it is not difficult to understand the reluctance of the Courts to issue a commission in such cases. The present case was a trial before the Magistrate without the aid or assistance of a jury and the decision in those two cases may, therefore, be distinguished on that account. It may further be pointed out that the former of the said two decisions was also in regard to the position as it prevailed prior to the enactment of the Code of Criminal Procedure, and so also the decision reported in Empress v. Daji Narsu and Govinda Natha I.L.R. (1882) Bom. 288, which is the earliest of the decisions cited by Mr. Mehta in chronological order. In the order passed by the Madras High Court in the decision reported in Me Grath v. Brachis (1910) Cri.L.J. 64, the Court set aside an order for the examination of a witness on commission because ' in the peculiar circumstances of the case' it thought that the witness who was an expert in handwriting and was the principal witness in the case should not be examined on commission. In the decision reported in Parma Nand v. Crown A.I.R. Lah. 73, the High Court declined to interfere with the exercise of the discretion by the District Magistrate in issuing a commission. A general observation was made that the issuing of the commission 'would certainly be a considerable saving of expense' and Section 503 empowered the District Magistrate to issue a commission in such cases. The actual expense that would be entailed was, however, not considered by the High Court in the said case. In the decision reported in Vishnoo Nainaram v. Dipchand Sitaldas (1925) Cri. L.J. 89, an order for the issue of a commission to examine a Mahant was set aside by the Court of Judicial Commissioner at Sind on the ground that it was not a wise exercise of discretionary powers by the District Magistrate. It may be mentioned that the Mahant had previously applied to the Government to exempt him from appearance in Courts of law, but the Government had declined to grant him that privilege, and in setting aside the order of the District Magistrate, the Court of the Judicial Commissioner has referred to the same. It has been further observed in the judgment in the said case that the provisions of O.XXVI, r.1 of the Code of Civil Procedure might be accepted as a safe guide by a Criminal Court in the matter of an application for the issue of a commission for the examination of a witness, as in the said case. There are two old decisions which have been referred to with apparent approval by the Supreme Court in a recent decision and they are the decisions in the cases of Queen-Empress v. T. Burke I.L.R. (1884) All. 224 and Md. Shafi v. Emperor : AIR1932Pat242 , both of which were cited before me by Mr. Mehta. The decision in the case reported in Queen-Empress v. T. Burke lays down the principle that it is not proper to allow the evidence of an important witness for the prosecution to be taken on commission on the ground that it would be inconvenient for the witness to attend Court, The decision reported in Md. Shaft v. Emperor lays down the general principle that Section 503 of the Criminal Procedure Code should be used sparingly and only in the clearest possible cases. These two decisions have been so construed by the Supreme Court in its judgment (para. 10) in Dharmanand v. State of U.P. : 1957CriLJ894 to which I will presently refer. In the case reported in H. Guha v. R.R. Chanda A.I.R. Rang. 231 a commission was granted in the case of a man suffering from heart trouble and fits, even though he was the complainant himself. In Shaukat Ali v. State of Punjab , an order for the examination of the Ruler of a former Indian State on commission was declined on the ground that it would not fall within the term 'inconvenience' in Section 503 of the Criminal Procedure Code. In the decision reported in Thaharshey Hirji v. Ramp A.I.R. Kut 44, what was held was that the mere fact that the witnesses sought to be examined were connected with the accused and would not attend the Court in Kutch, could not be a ground for issue of a commission under Section 503 of the Code of Criminal Procedure. In the decision of the Division Bench reported in K. D. Bose v. Upendra Krishna : AIR1951Cal380 it was held that a commission could not be refused on the ground that the witnesses whom the accused sought to examine on commission, could not be cross- examined by the complainant, and it was observed that, if the complainant thought that those witnesses should be cross-examined, he had to make arrangements to do so on commission. It was further observed in the judgment delivered by Harries, C. J., in the said case (para. 7) that the contention that if the witnesses were examined on commission by interrogatories, the Court would not have the advantage of seeing and hearing them being cross-examined, was not a good reason for refusing commission, for if that was the position, 'then section 508 should be wiped out of the Code, or used only for the examination of perfectly formal witnesses'. In the decision reported in State of Delhi v. Krishna Swamy an application was made for the examination on commission of Mr. K.M. Munshi, who was then the Governor of U.P. and had been cited as a prosecution witness in the said case. An application was made under Section 503 of the Criminal Procedure Code on the ground that personal attendance of Mr. Munshi would cause delay and inconvenience to the witness and dislocation of his public duties as the Governor of an important State. The Special Judge before whom the said case was tried declined to make the order applied for, on the ground that, as a Special Judge appointed under the Criminal Law Amendment Act, 1952, he had no power to issue commission under Section 503 of the Criminal Procedure Code, and secondly on the ground that, even if he had the power, that was not a fit case in which the power should be exercised. The State Government having approached the High Court in revision, that order was confirmed by the High Court, and it was observed (para. 5) that the inconvenience which the Legislature appeared to have contemplated was the inconvenience caused by the age or infirmity of a witness, or the fact that he resided at a place far removed from the place of trial, or the inconvenience (apart from the expense) which might be occasioned by compelling him to leave his occupation for a considerable length of time. It is interesting to note that, perhaps as a result of the said decision, an amendment was made in Section 503 of the Criminal Procedure Code whereby a proviso was added making it obligatory on the Court to issue a commission for the examination of the President, the Vice-President or the Governor of a State, if it was necessary to do so for the ends of justice. That leaves for my consideration the one and only decision of importance on the point which I am now considering, and that is the decision of the Supreme Court in the case of Dharmanand v. State of U.P. The accused in the said case was a Head Clerk in the Office of the Civil Surgeon at Almora and was charged with having misappropriated a sum of money entrusted to him during a portion of the period in which he was functioning as Head Clerk. The prosecution put in an application to examine on commission three witnesses, including two Civil Surgeons during whose tenure of office the alleged misappropriation had taken place. The Magistrate passed an order that commission be issued to examine the said witnesses. The examination of the said witnesses was thereafter proceeded with on commission by the submission of interrogatories which were filed in Court. The accused, however, put in an application objecting to certain questions on the ground that they were leading questions, and further stating that the appearance of two of them for recording their evidence in person before the Court was necessary and their cross-examination in Court should be arranged for that purpose. The Magistrate, however, appears to have made an order whereby only the language of the interrogatories was modified and the result of the proceedings was, as stated by the Supreme Court itself in its judgment (para. 3), that important witnesses such as two Civil Surgeons during whose period the alleged misappropriation took place, as well as the auditor, were examined on commission by interrogatories. The Supreme Court in its judgement laid down (para. 6) that it was an established and cardinal principle of criminal jurisprudence obtainable in all systems of law that in criminal proceedings evidence against the accused should be recorded in his presence and in open Court, so that the accused might be enabled to challenge such parts of the statement as he wished to challenge and the presiding officer might have the advantage and opportunity of hearing the witness in person, noting his demeanour and finding out for himself on such observation whether what the witness deposed was true or otherwise. It further proceeded to qualify that proposition by stating that where, on account of particular reasons, it was not possible to get the presence of the witness in Court, the Criminal Procedure Code provided for examination on commission. The Supreme Court then proceeded to consider the facts of the case and came to the conclusion (para. 8) that it had not been shown that the attendance of the two Civil Surgeons as well as the auditor could not have been procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable, and observed that there was not even a suggestion of unreasonable delay or expense and inconvenience in the case before them, and there was no possible justification on the record for the issue of the commission, and much more so for the issue of mere interrogatories. The Supreme Court then proceeded (para. 9) to consider the corresponding provisions in regard to the issue of a commission that are to be found in Sections 75 and 78 as well as O.XXVI. Rules 1 and 4 of the Code of Civil Procedure, and after referring to the conditions laid down therein for the issue of a commision, stated as follows (p. 598) :.No such limitations have been imposed for the examination of witnesses on commission under the Code of Criminal Procedure, But that by itself should make the presiding officer observe greater care and caution in issuing a commission to examine a witness, for, as already stated, it is the inherent right under ordinary circumstances of every accused person to have the evidence against him recorded in open court and in his presence and where any departure from that mode is necessary, the same should be limited to exceptional cases and the Criminal Procedure Code provides how and where such discretion ought to be exercised.
The observation of the Supreme Court that no such limitations as are to be found in Sections 75 and 78 and O.XXVI, Rule 4 of the Code of Civil Procedure have been imposed for the examination of witnesses on commission under the Code of Criminal Procedure, and its further observation that that, by itself, should make the Court observe greater care and caution in issuing a commission to examine a witness in a Criminal Court show that the power under the Criminal Procedure Code is, in a sense, even wider than under the Code of Civil Procedure. It is also pertinent to note that the observation of the Supreme Court in the passage just quoted by me, does not state that the conditions for the exercise of the Court's discretion to examine a witness on commission in a criminal proceeding is laid down only in Section 503 of the Code of Criminal Procedure, but is to the effect that the same are to be found in the Code, which would clearly include Section 561 also. After considering the earlier decisions in Queen-Empress v. T, Burke and Md. Shaft v. Emperor the Supreme Court formulated the law on the point as follows (para. 10):.As a general rule it may be said that the important witnesses on whose testimony the case against the accused person has to be established, must be examined in court and usually the issuing of a commission should be restricted to formal witnesses or such witnesses who could not be produced without an amount of delay or inconvenience unreasonable in the circumstances of the case. The idea of examining witnesses on commission is primarily intended for getting the evidence of witnesses other than parties principally interested such as a complainant or any person whose testimony is absolutely essential to prove the prosecution case. In short, witnesses in a criminal case should not be examined on commission except in extreme cases of delay, expense or inconvenience and in particular the procedure by way of interrogatories should be resorted in unavoidable situations.
The Supreme Court came to the conclusion that the Magistrate had acted improperly in having essential witnesses examined on commission, and that the accused had not had a fair trial, and it, therefore, allowed the appeal and remitted the case for retrial, according to law, to the Court of the first instance in the light of the observations' made by it. This decision of the Supreme Court, in my opinion, lays down four propositions and they are as follows :
(1) It is a cardinal principle of criminal jurisprudence that evidence against the accused should be recorded in his presence in open Court;
(2) As a general rule, important witnesses should be examined in Court;
(3) In criminal cases evidence should be taken on commission only in extreme cases of delay, expense or inconvenience; and
(4) The procedure by way of interrogatories should be resorted to only in unavoidable situations.
The decision of the Supreme Court in Dhannanand's case does not lay down the full import of the expression 'delay, expense or inconvenience,' nor does it lay down in what precise manner the requirement of serving the ends of justice is to be correlated to the three conditions viz. delay, expense or inconvenience provided for in Section 503 of the Criminal Procedure Code. There is an unreported decision of a Division Bench of this Court consisting of my brothers Patel and Kantawala in Lakshmandas Chaganlal Bhatia v. The State of Maharashtra (1966) Criminal Appeal No. 1626 of 1963, decided by Patel and Kantawala JJ., on April 18/27, 1966 (Unrep.) (along with several other appeals to which it is unnecessary to refer) in which the decision of the Supreme Court in Dharmanand's case was cited, and it was observed in the judgment of the Bench delivered by my brother Patel, that the proposition laid down by the Supreme Court in Dharmanand's case merely provides for the normal rule, but there might be circumstances in a case where to deny the issue of a commission might cause injustice, and to refuse to issue commission might 'result in failure of justice for doing which alone all Courts exist'. The Division Bench in the said case then proceeded to consider the question as to whether apprehension of arrest and prosecution on the part of the witness, who was a co-conspirator with the accused in that case and was proposed to be examined on commission on the application of the accused, would constitute inconvenience within the terms of Section 503. It held,' the difficulty that the Court would not be able to watch the demeanour of the witness concerned and would not be able to prosecute him if he gives false evidence are far too few when compared to the liberty and sometimes the life of the accused, who may but for want of that testimony be unjustly convicted'. However, on other grounds, the application for examining the said witness on commission was refused by this Court. On appeal to the Supreme Court, the order refusing the issue of commission was confirmed on the ground that there were facts to show that the application itself was not made in good faith. These are all the decisions which it is necessary for me to consider in regard to the proper construction of Section 303 of the Criminal Procedure Code. I agree with the view taken by the Rajasthan High Court in the decision reported in Om Prakash v. State, to which I have already referred, in so far as it lays down (para. 5) that the inconvenience that has to be considered by the Court on an application under Section 503 is not only the inconvenience to the parties, but also the inconvenience that would be caused to the witness who is sought to be examined on commission. Mr. Khandalawala has drawn our attention to the ordinary dictionary meanings of the word 'inconvenience' which include, amongst others, 'harm', 'injury', disadvantage', 'causing of trouble'. I agree with the observations of the Division Bench consisting of my brothers Patel and Kantawala in their judgment in Lakshmandas Chaganlal Bhatia v. The State of Maharashtra, to which I have already referred, to the effect that apprehension of arrest from which a witness who is sought to be examined, on commission suffers would be 'inconvenience' within the terms of Section 508 of the Code. In my opinion, it would be certainly within the dictionary meaning of that term to which I have already referred.
15. Turning to the facts of the present case in the light of the view taken by me in the preceding paragraph, I have no hesitation in accepting the two-fold submission made before us by Mr. Khandalawala. As far as witness Klaus Kafaic is concerned, he has been re-employed by his former employer Fr. Meyer's Sohn Hamburg and was forbidden by his employer even to go to London for the purpose of giving evidence in this case. That is apparent from his letter dated March 21,1967 addressed to the Indian Consulate in Berlin. In the said letter it is stated that the view of his employers is that they were only forwarding agents and it was not competent to them to give evidence about the business and the same was forbidden by German usage. He further stated in the said letter that he had to accept the orders of his employers to whom he was subordinate. There can be no doubt that if Klaus Kafaie was forbidden by his employers to go to London for the purpose of giving evidence on the ground that it was not the business of a forwarding agent to do so and the same was forbidden by German usage, a fortiori, he is not in a position to come to India for the same purpose. Mr. Khandalawala has rightly contended that as far as Klaus is concerned, therefore, the possibility of his losing job if he were to disobey his employers and come to India to give evidence, would be harm or injury which would clearly fall within the term 'inconvenience' in Section 503 of the Code. I have also no hesitation in accepting the contention of Mr. Khandalawala that in regard to all witnesses other than Klaus Kafaie, the risk to their personal safety occasioned by the intimidation and threats given by accused No. 2 in regard to which there is a concluded finding of fact, both of the High Court as well as of the Supreme Court in this very case (69 Bom. L.R. 855, at p. 858) to which I have already referred, would also be harm or injury that would bring the case within the terra 'inconvenience' in Section 508. In my opinion, it is no longer open to accused No. 2 to challenge the fact that he had intimidated or tampered with the witnesses whom the prosecution desired and still desires to examine in Germany, Reference may be made in this connection to an anonymous letter dated August 6, 1966, which was addressed, according to the prosecution, by accused No. 2 which shows clearly that threats were held out to all the German witnesses whom the prosecution proposed to examine. This, of course, would not apply to the customs officers in Germany who are also sought to be examined by the prosecution on commission, but there can hardly be any doubt that it would cause the gravest inconvenience to customs authorities in Germany to come and give evidence in India. I do not, however, accept Mr. Khandalawala's further argument that the present case also falls within the term 'delay' used in Section 508 of the Code, on the ground that even indefinite delay would be covered by that term. In my opinion, such a construction of the term would be very unnatural for the term 'delay' postulates a mere deferment in point of time, but it is implicit in it that there would be a possibility of accomplishing that which is deferred. In my opinion, the term 'delay' as used in Section 508 necessarily postulates that there is a possibility of the witness being procured, though the prosecution might not be able to say when he could be procured. That is not the position here and the case, therefore, would not fall within the term 'delay' in Section 508 of the Criminal Procedure Code. As far as the term 'expense' in Section 508 is concerned, I am afraid, no material at all has been placed before us on which we can come to the conclusion that the expense involved would be such as to justify the making of an order for the examination of the witnesses from Germany on commission. The Court cannot proceed on any general notions in regard to the expense, or make a general estimate as to costs based upon its own knowledge. In the absence of any material being placed before us on that score, I am unable to take the view that the granting of the commission applied for would be justified in the present case on the ground of unreasonable expense.
16. That brings me to the second question formulated by me viz., whether this Court has inherent power to make an order for the examination of witnesses on commission under Section 561 A of the Criminal Procedure Code in a case not covered by Section 508 thereof. Several authorities have been cited before us in regard to the exercise of inherent powers by the High Court, but I do not think it necessary to discuss all of them. There are five decisions of the Supreme Court to which, however, I must refer. The first in point of time is the decision of the Supreme Court in the case of Talab H. Hussain v. M.P. Mondkar A.I.R. S.C. 876 : 60 Bom. L.R. 937, A.I.R.  S.C. 542 in which the question which arose was whether the High Court could cancel the bail granted under Section 496, Criminal Procedure Code, to a person accused of a bailable offence. Holding that it had the inherent power, to do so, Gajendragadkar J. who delivered the judgment of the Supreme Court stated (para. 6) that the primary object of criminal procedure was to ensure a fair trial, and that a fair trial had naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. He further proceeded to observe that the trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly, the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender, and that the acquittal of the innocent and the conviction of the guilty were the objects of a criminal trial, and if any conduct on the part of an accused person was likely to obstruct a fair trial, there was occasion for the exercise of the inherent powers of the High Courts to secure the ends of justice. The Supreme Court, therefore, took the view (para. 10) that if by his subsequent conduct, a person accused of a bailable offence forfeited his right to be released on bail, that forfeiture must be made effective by invoking the inherent power of the High Court under Section 561A, and that the omission of the Legislature to make specific provision in that behalf was clearly due to inadvertence and could not be regarded as deliberate. In an earlier part of the judgment (para. 5), it was observed that in prescribing rules of procedure the Legislature undoubtedly attempted to provide for all cases that were likely to arise, that it was however not possible that any legislative enactment dealing with procedure would f succeed in doing so and lacunae were sometimes discovered in procedural law, and that it was to coyer such lacunae that procedural law invariably recognized the exercise of inherent power in Courts. Gajendragadkar J. then proceeded to point out that it was only the High Courts whose inherent power was recognised by Section 561 A, and even in regard to that power, definite statutory safeguards had been laid down as to its exercise, viz., that it could be exercised only where the High Court was satisfied either that an order passed under the Code would be rendered ineffective, or that the process of any Court would be abused, or that the ends of justice would not be secured. It is important to note that Gajendragadkar J. said that in such cases, ' the High Court can and must exercise its inherent power under section 561 A.' In the concluding paragraph of the judgment the learned Judge, however, cautioned the High Courts that that power had to be exercised 'sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.' From a careful perusal of the decision of the Supreme Court in the said case two specific propositions relevant to the present case emerge as having been laid down by that Court : (1) if the primary object of fair trial viz., a trial that is fair both to the accused as well as the prosecution, is likely to be defeated as a result of the absence of a specific statutory provision due to oversight or inadvertance on the part of the Legislature, there is occasion for the exercise of the inherent powers of the High Court under Section 561A in order to secure the ends of justice; (b) those inherent powers cannot, however, be invoked in respect of any matter covered by specific provisions of the statute if their exercise would be contrary to, or inconsistent or in conflict with, specific provisions of the statute. The decision of the Supreme Court in Talab Hussain's case is, therefore, of considerable assistance for the purpose of determining the scope nature and object of the inherent powers of the High Court under Section 561A of the Criminal Procedure Code. In the case of Khushi Ram v. Hashim A.I.R. S.C. 542, seventeen accused persons were committed to the Sessions Court in respect of etc. read with Section 149 of the Indian Penal Code. They Section 561A of the Code of Criminal Procedure to the Allahab that order of commitment. The High Court allowed that the order of commitment, purporting to act under the so that application it was sought to be contended that the G provided ins. 215 thereof for the quashing of commitment and that too, only on a point of law. The Supreme Co. and setting aside the order of the High Court, observed offences under Sections 395,897, side an application under High Court challenging application and quashed d Section 561A. In opposing le of Criminal Procedure by the High Court alone, t in allowing the appeal at page 544) that it was unnecessary to emphasise that the inherent power of the High Court under Section 561A could not be invoked in regard to matters which are directly covered by the specific provisions of the Code, and the matter with which the learned Judge was concerned in the said case was directly covered by Section 215 of the Code. It would not be out of place to point out that the Supreme Court has laid stress on the fact that the matter in question must be 'directly ' covered by a 'specific' provision of the Code. If, therefore, the contingency that has arisen in a particular case is not directly covered by a specific statutory provision, the inherent power of the High Court in regard to such a matter would not be displaced by virtue of the decision of the Supreme Court in Khushi Ram's case. The next decision of the Supreme Court to which I must refer is in the case of B. P. Kapur v. State of Punjab : 1960CriLJ1239 . In that case, a First Information Report was lodged against the appellant in which it was alleged that he and his mother-in-law had committed offences under Section 420 read with certain other sections of the Indian Penal Code. As no further action was taken on that First Information for several months, the appellant filed & criminal complaint against the maker of the First Information Report under Sections 204, 211 and 885 of the Indian Penal Code contending that the said report was false. The proceedings in respect of the complaint filed by the complainant were thereafter adjourned by the Magistrate, and the appellant thereupon moved the Punjab High Court under Section 561A of the Code for quashing the proceedings initiated by the First Information Report in question. The High Court rejected that application on the ground that no case had been made out for quashing the proceedings under Section 561A. From that order, the appellant approached the Supreme Court which dismissed the appeal. The Supreme Court, in doing so, took the view that inherent powers could not be exercised in regard to matters specifically covered by other provisions of the Code, nor can they be used to quash the proceedings in a proper case, either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, which must ordinarily be tried under the provisions of the Code. The Supreme Court, however, proceeded to observe that it was neither possible nor desirable or expedient to lay down any inflexible rule which would govern the exercise of the Court's inherent jurisdiction. It further observed that in exercising its jurisdiction under Section 561A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. The said case is concerned only with the scope for invoking the inherent powers of the Court in relation to the quashing of criminal proceedings and is of no assistance as far as the facts of the present case are concerned.
17. That brings me to two cases which throw light on the scope of the inherent powers of the Court, though both of them relate, not to criminal proceedings but to civil proceedings. The first of them is the decision in the case of Padam Sen v. State of U.P : 1961CriLJ322 . In a suit for the recovery of moneys alleged to be due on promissory notes, the defendants, apprehending that the plaintiff would fabricate his books of account, applied for seizure of the account books of the plaintiff and the Additional Munsif by his order appointed a Commissioner to seize the plaintiff's books of account. One of the questions which arose in the case was whether the order of the Additional Munsif appointing the Commissioner for the purpose of seizing the plaintiff's books of account could be said to be an order which was passed by the Court in the exercise of its inherent powers since it would otherwise be outside the ambit of the relevant section of the Code of Civil Procedure. The Supreme Court, after considering the provisions of Section 75 and Order XXVI as well as Section 151 of the Civil Procedure Code, observed as follows (para. 8) :
The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.
In the said passage, the Supreme Court made two things clear, (1) that all inherent powers are in the nature of additional or complementary powers of the Court; and (2) that they may be invoked only if they are not in conflict with or contrary to or different from any express provisions of the statute in question. The Supreme Court proceeded to lay down (para. 9) that the inherent powers of the Court' which are saved by Section 151 of the Code are with respect to procedure only, and are not powers over the substantive rights which a litigant possesses. It took the view that a party has full rights over its books of account and that the order made by the Additional Munsif infringed upon the substantive rights of the plaintiff in the said case and had, therefore, to be set aside. The Supreme Court has, however, by clear implication from its observation (para. 8) held in the said case that the Court did have inherent power to issue a commission, in addition to its power under Section 75 and Order XXVI of the Code of Civil Procedure, but it declined to do so only because the order in the case before it affected the substantive rights of the plaintiff in that case. That is how this decision has been construed by the Supreme Court itself in its later decision in the case of Manohar Lal v. Seth Hiralal : AIR1962SC527 , in which the observations made in para. 8 of the judgment in Padam Sen's case were actually quoted. In Manohar Lal's case the question which arose was whether the Court has inherent power to grant a temporary injunction in a case which does not fall under Section 94 or Order XXXIX of the Civil Procedure Code. The temporary injunction sought in that case was to restrain the appellant from continuing proceedings in the Court of the subordinate Judge at Asansol pending the disposal of the suit which the respondent had filed in the Court of the District Judge at Indore. It may be stated that the Asansol suit was the previously instituted suit in point of time, and the respondent made an application to the Asansol Court for stay of that suit under a. 84 of the Arbitration Act in view of one of the provisions of the Deed of Dissolution of Partnership in question in that case, but that application was rejected. The respondent then applied to the Court at Asansol for stay of that suit in exercise of its inherent power, but that application was also rejected. The appellant had, in the meantime, applied to the Indore Court for stay of that suit under as. 10 and 151 of the Code of Civil Procedure which was rejected and that order was confirmed by the High Court of Madhya Bharat. It was under those circumstances, that the respondent applied to the Court of the District Judge at Indore for a temporary injunction restraining the appellant from continuing the proceedings in Asansol Court. The District Court at Indore granted that injunction and an appeal from that order was dismissed by the High Court of Madhya Bharat. It was from that order that the appellant approached the Supreme Court by special leave. The Supreme Court, after referring to the conflicting decisions on the point, held (para. 18) that the Court could issue an interim injunction under circumstances which were not covered by Order XXXIX of the Code if the Court was of opinion that the interests of justice required the issue of an interim injunction. In support of that conclusion, the Supreme Court pointed out that there was 'no such expression in section 94' which expressly prohibited the issue of a temporary injunction in circumstances not covered by Order XXXIX or by any rules made under the Code, and that it was well-settled that the provisions of the Code were not exhaustive for the simple reason that the Legislature was incapable of contemplating all possible circumstances which might arise in future litigation and consequently for providing the procedure for them. The Supreme Court further stated that the effect of the expression 'if it is so prescribed' in Section 94 of the Civil Procedure Code was only this , that when the rules prescribed the circumstances in which temporary injunction should be issued, ordinarily the Court was not to use its inherent powers to make the necessary orders in the interests of justice, but was merely to see whether the circumstances of the case brought it within the prescribed rule. The Supreme Court further observed that if the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. The Supreme Court further pointed out (para. 19) that there was nothing in Order XXXIX, Rules 1 and 2 which provided specifically that a temporary injunction was not to be issued in oases which were not mentioned in those rules. Most important of all, the Supreme Court laid down (paras. 20-23) in categorical terms that the provisions of Section 151 of the Code themselves make it clear that the inherent powers of the Court are not controlled by the provisions of the Code. It may be stated that the decision of the Supreme Court discussed above, was the decision of the majority of the Judges constituting the Bench, with Mr. Justice J. C. Shah dissenting from the same. On a consideration of the facts of the case, the Supreme Court, however, came to the conclusion that it was not necessary in the interests of justice, or to prevent abuse of the process of the Court, that the temporary injunction in question should be granted restraining the appellant from proceeding with the suit at Asansol and the appeal was, therefore, allowed. A careful perusal of the judgment of the Supreme Court in Manohar Lal's case shows that the view taken by the Supreme Court was that the Court had inherent power in matters of procedure to make such orders as were necessary for the ends of justice, or to prevent abuse of the process of the Court, unless there was a specific provision which expressly prohibited the making of such an order in a case which did not fall within it. The Supreme Court also relied on the fact that the provisions of the Civil Procedure Code are not exhaustive and that the very existence of an inherent power shows that that was the position, for the simple reason that the Legislature was incapable of contemplating all possible situations that might arise in the course of litigation. As far as the Code of Criminal Procedure is concerned, the position cannot, in my opinion, be different. In fact, a single Judge of this Court has, in the case of Emperor v. Yeshvant Vithu 28 : (1937)39BOMLR355 , in considering whether the Court had inherent power 'apart from sections 282, 288, 805 and 465 of the Code of Criminal Procedure' to discharge a jury, observed (at p. 857) that the Criminal Procedure Code could not be said in that respect to be exhaustive, for it did not make provision, for instance, for the discharge of a jury upon the termination of a trial. As observed by the Supreme Court itself in Manohar Lal's case, a procedural Code cannot contemplate all possible circumstances. It is for that very reason that both the Codes of Civil as well as Criminal Procedure have sections preserving and declaring the inherent powers of the Court to make such orders as are necessary for the ends of justice, or to prevent abuse of the process of the Court, The Criminal Procedure Code not being exhaustive, and there being no express words in Section 503 of that Code to prohibit the making of an order for the examination of witnesses on commission in cases not provided for therein, I have no hesitation in coming to the conclusion that the High Court has inherent power to make such an order under Section 561A of the Code. Not only does Section 508 not prohibit the exercise of such inherent power, but the exercise of the inherent power to issue a commission for the examination of a witness in a case not falling under Section 508 would, in my opinion, not be in conflict with, or contrary to, or different from, the provisions of Section 508, insofar as if would meet a situation which Section 503 itself does not contemplate. I accept the construction which Mr, Khandalawala has placed upon Section 508 in the course of his arguments before us viz., that the principle of Section 503 is contained in the words 'necessary for the ends of justice', and that the additional conditions viz., that the attendance of such a witness could not be procured without an amount of delay, expense or inconvenience which is unreasonable, are merely the situations which normally arise, and in setting out those situations there may be a lacuna on the part of the Legislature which may never have been contemplated. It is precisely in such cases where there is a situation which the Legislature has not contemplated that the inherent powers of the High Court under Section 561A can and should be invoked. To use the language of the Supreme Court in Talab Hussain's case (para. 10), it would lead to 'fantastic' results if an order for the issue of a commission could be made in what I would call, a 'lesser case' viz., of unreasonable delay, expense or inconvenience, but could not be made in a case in which it would be impossible to get the witness in question to give evidence before the Court, which would be of a grosser case in which there would be greater reason to make such an order.
18. In contending that the Court has no such inherent power, Mr. Mehta's arguments, when analysed, ultimately come to four main propositions : (1) the cardinal principle being that evidence must be taken in the presence of the accused and the accused must have an opportunity to cross-examine the witnesses, the power to issue a commission is an exception to that cardinal principle, and no question of invoking the inherent powers of the Court can arise in regard to an exception which must be strictly limited to the statutory provision contained in Section 503 of Code; (2) the said cardinal principle was part of the substantive law and no question of invoking the inherent power of the Court under Section 561 A. can arise except in regard to matters of procedure as laid down by the Supreme Court in Padam Sen's case cited above (para. 9); (3) since Section 508 lays down that in addition to the requirement of serving the ends of justice, certain other conditions should be fulfilled, viz., that the witness cannot be procured without an amount of delay, expense or inconvenience which the Court considers unreasonable, to invoke the inherent power of the Court under Section 561A merely on the ground of the ends of justice being served thereby, would be in conflict with Section 508; and (4) Section 561A only declares and preserves the existing powers of High Courts and, since no power to examine a witness on commission in a criminal case is to be found in English Law, there can be no such power which the High Courts could have inherited under the said Section 561 A. I may dispose of the third contention of Mr. Mehta first by stating that, as contended by Mr. Khandalawala, the conditions in regard to delay, expense or inconvenience are merely situations laid down by the Legislature which normally arise, and in that view of the matter, this argument of Mr. Mehta cannot survive. I may also dispose of the second contention of Mr, Mehta viz., that the principle that evidence must be taken in the presence of the accused is a rule of substantive law and not of procedure. There is no substance in that contention of Mr. Mehta and even a cursory reference to a standard work like Salmond on Jurisprudence (12th ed.), pp. 461 to 464, shows that procedure is that branch of the law which governs the process of litigation, that it deals with the means and instruments by which the ends which the substantive law seeks to subserve are attained, and that the normal elements of judicial procedure include 'proof' which is the process by which the parties supply the Court with the data necessary for the decision of the questions before it. In fact, the Supreme Court in Padam Sen's case cited above held (para. 8) by clear implication from its observations that the power to issue a commission is a procedural power and it declined to make the order for commission in that case only on the ground that it was being used in that case for affecting the substantive rights of the parties. As already pointed out by me above, that is precisely how the decision of the Supreme Court in Padam Sen's case has been construed by the Supreme Court itself in Manohar Lal's case which has also been cited above. The contention of Mr. Mehta that these are matters of substantive law and the issuing of a commission would affect the substantive rights of the accused persons must, therefore, be rejected. The principle relied upon by Mr. Mehta viz., that evidence must be taken in Court in the presence of the accused is no doubt a cardinal principle, but there is all the world of difference between a cardinal principle and principle of substantive law, the former of which may also relate to procedural law.
19. That brings me to the first contention of Mr. Mehta in regard to the inherent powers of the Court under Section 561A viz., that the issuing of the commission being in the nature of an exceptional power, the inherent power of the Court under Section SB1A cannot be invoked with regard to the same. The answer to that contention is to be found in the wide observations of Gajendragadkar, J. in delivering the judgment of the Supreme Court in Talab Hussain's case, already cited above, to the effect that the primary object of a criminal proceeding is to ensure a trial that is fair not only to the accused but to the prosecution as well. In my opinion, the principle which Mr. Mehta has characterised as the cardinal principle that evidence must be taken in the presence of the accused must give way to the primary object of every criminal proceeding which is to ensure a fair trial. As was further observed by Gajendragadkar J, in his judgment in the said case, the acquittal of the innocent and, the conviction of the guilty are the objects of a criminal trial, and there can be no doubt that if either of those objects is likely to be frustrated by reason of the absence of an adequate statutory provision, there is occasion for the exercise of the inherent power of the High Court to secure the ends of justice. If the result of applying the cardinal principle referred to by Mr. Mehta is the acquittal of a guilty person, that would, therefore, be a situation in which the inherent power of the High Court under Section 561A should be invoked. Seeing the matter in this larger perspective, therefore, no question of the order for issuing a commission being in the nature of an exception which negatives the exercise of inherent power arises at all. The matter must be viewed in the larger context of securing a trial that is fair not only to the accused but to the prosecution also. The omission on the part of the Legislature to provide for a case like the present one in which the procuring of witnesses from Germany might be almost an impossibility, having regard to the facts brought to our notice, is at best a lacuna which is due to oversight or inadvertence, and as observed by Gajendragadkar J. in his judgment in the said case (para. 10), it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent power in Courts (para. 5). The first contention of Mr. Mehta must, therefore, also be rejected.
20. The fourth proposition of Mr. Mehta was that it is well-settled by a line of decisions of the Supreme Court as well as other Courts that Section 561 A does not confer any new power, but only declares and preserves the existing inherent powers of the High Court at the time when the said section was inserted in the Code of Criminal Procedure by Act XVIII of 1923, and that a reference to the English law shows that no such power existed in the Courts prior to the enactment of the said section. In support of that proposition Mr. Mehta has relied upon the fact that, except to a very limited extent, there is no power in the Courts in England to issue a commission for the examination of witnesses in a criminal case. He has referred us in that connection to the statement of the law in Archbold on Criminal Pleadings, Evidence and Practice (36th Ed.), PP- 462 to 465, and has contended that if there was no such power under English law, none could have been inherited by the Indian Courts prior to the codification of criminal procedure in this country. Mr. Khandalavala's answer to that proposition is that when the authorities laid down, as was laid down by the Supreme Court itself 69 Bom. L.R. 855, that Section 561A only preserved the existing inherent powers of the High Court, what was meant was that the power to meet the three situations expressly mentioned in Section 561A itself must have existed prior to its enactment viz., to make such orders as, may be necessary, (1) to give effect to any order under the said Code or (2) to prevent abuse of the process of any Court or (8) otherwise to secure the ends of justice. It was the contention of Mr, Khandalavala that what was meant by the proposition which, for instance, is to be found in Talab Hussain's case and in many other cases, was not that there should have been a power in regard to the specific matter in respect of which the question of the exercise of the inherent power has arisen, as for instance, the power to cancel bail, or the power to issue a commission. If the High Court had the inherent power to make such orders as were necessary for the ends of justice, it could exercise its inherent power for that purpose in regard to any number of particular matters so long as it was not thereby overriding, or conflicting with, or acting contrary to, any express or specific provision of statute. In my opinion, this contention of Mr. Khandalavala is clearly right and finds support from the fact that, as stated by the Supreme Court in Talab Hussain's case already cited above (para. 10), Section 561A is clearly intended to meet a situation which the Legislature never contemplated and in respect of which there is an omission or lacuna due to oversight or inadvertence in the statute, and that is because it was not possible that any legislative enactment dealing with procedure, however carefully it might have been drafted, would succeed in providing for all cases that might possibly arise in future (para. 5 of the same judgment). Moreover, as laid down by the Supreme Court in the said case, the only requirement for invoking the exercise of the inherent powers of the Court is that it is necessary to do so for the purpose of ensuring a trial that is fair at once to the accused and the prosecution and thereby to serve the ends of justice. In view of these clear pronouncements of law by the highest Court, I am afraid, this contention of Mr. Mehta must also be rejected.
21. That brings me to the contentions of Mr. Jethmalani which were intended to supplement the arguments of Mr. Mehta. Those contentions were as follows: (1) section 428 of the Code of Criminal Procedure does not authorize additional evidence being recorded on commission, the reason being that to record evidence on commission when the matter is already at the appellate stage would result in the proceedings being unduly protracted and delayed; (2) the prosecution had all the opportunity in the world to get the commission issued before the order of discharge in respect of accused Nos. 2, 8 and 7 was made by the trial Magistrate and it should not, therefore, be allowed to do so at this stage; (8) the conditions for the applicability of Section 508 had to be established by the prosecution by properly recorded evidence. As the Criminal Procedure Code, unlike the Civil Procedure Code, does not contemplate affidavit evidence except in exceptional cases, the correspondence relied upon must be proved by proper evidence. In the present case, there is no legal evidence before the Court for the issue of commission; and (4) looking at the case from the point of view of accused No. 1, who Mr. Jethmalani stated was a poor man and who, unlike accused No. 2, had not intimidated any of the German witnesses, the issue of a commission in the 10th year of the prosecution was sheer oppression.
22. In support of the first of the said contentions Mr. Jethmalani relied on the terms of Sections 428, Sub-sections (1) and (4) of which, in particular, according to him, rule out additional evidence being taken on commission. As far as the latter sub-section is concerned, Mr. Jethmalani referred to the provisions of Section 858 which is included in the said Chapter XXV and which requires that all evidence must be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader. He has, therefore, contended that, reading these two sections together, and having regard to the fact that there is no reference whatsover to Section 508 either in Section 428 or in Section 838, the Court must come to the conclusion that additional evidence directed under Section 428 cannot be recorded on commission. There is, in my opinion, a very simple answer to that contention of Mr. Jethmalani, and that answer is, that Section 858 itself opens with the words 'except as otherwise expressly provided' and, therefore, makes a clear provision excepting Section 508 from its ambit. It cannot, therefore, be contended that the recording of evidence on commission under Section 508 is negatived by reason of the provisions of Section 858 read with Section 428, as Mr. Jethmalani has contended. Mr. Khandalavala has also argued in reply to this contention of Mr. Jethmalani that Section 428 must be construed harmoniously with Section 508, and on a harmonious construction of these two sections, it must be held that when the High Court records evidence on commission under Section 508, it is really taking evidence itself through the Commissioner. Having regard to the clear position that entails by reason of the opening words of Section 858 to which I have already referred, and which in my opinion clearly save operation of Section 508 as far as evidence recorded under Section 428 is concerned, I do not think it necessary to deal with this contention of Mr. Khandalavala.
23. I would prefer to deal next with the third contention of Mr. Jethmalani in which, according to me, there is no substance at all. First of all, to accept this contention of Mr. Jethmalani would lead to absurd and impossible results which any Court of law must necessarily seek to avoid, for it would mean that the prosecution would have to establish, for instance, the inconvenience that would be caused to a witness, not by placing facts on affidavit, but by leading oral evidence as Mr. Jethmalani has contended. That oral evidence, if it is of any person other than the witness proposed to be examined, would be hearsay evidence and inadmissible as such. The absurd result that would follow therefore is that, in order to establish, for instance, the cause of inconvenience to the witness concerned if he were to come here to give evidence, his evidence would first have to be taken for the purpose of proving the inconvenience. If the witness was in a position to come for that purpose, surely there would be no occasion for commission evidence at all. I am, however, not relying merely on the absurdity of the situation that would be created if this contention of Mr, Jethmalani were to be accepted. Mr. Jethmalani has contended that the Criminal Procedure Code contemplates affidavit evidence only in the three cases laid down in Section 326 (4), 500A and 589A, but what Mr. Jethmalani overlooks is the fact that there is in provision in the Criminal Procedure Code which lays down that facts cannot be proved by affidavit in any other case, or that affidavits cannot be filed for any other purpose. In my opinion, there is no warrant for drawing an inference that affidavit evidence is excluded in all cases, except those under the three sections mentioned by Mr. Jethmalani. A similar question arose before the Division Bench of the High Court in the case of Madhukar v. Talab Haji Hussain : AIR1958Bom406 in which the learned Counsel for the accused applied that he should be permitted to cross-examine the deponents of the various affidavits filed before the trial Magistrate and to permit him to lead evidence on behalf of his client for the purpose of showing that no case had been made out for the cancellation of the bail of the accused, and he was not intimidating the prosecution witnesses as was alleged. Dealing with that application, the learned Chief Justice who delivered the judgment of the Bench stated (para. 16) that it was 'a most unusual and extraordinary application' and that in all the years of the existence of the High Court no case had ever been known of an application for the granting of bail, or cancellation of bail, or an application in regard to bail, ever having been disposed of otherwise than on affidavits. The learned Chief Justice very pertinently pointed out that in making that application what was overlooked on behalf of the accused was that the proceeding before the Court at that stage was not a trial, and that the Court was not looking for proof of facts in order to convict the accused but was being asked to make a mere discretionary order and it had to be satisfied that the materials placed before it were such as to lead to the conclusion that there was a strong prima facie case that if the accused were to be at large he would tamper with the prosecution witnesses and impede the course of justice. The learned Chief Justice further proceeded to observe that he was not suggesting that he had no power to take evidence if he was so inclined, but that would, be a very violent departure from settled practice and there was no reason whatsoever in that case why such departure should be permitted when there were affidavits before them of responsible officers of the customs department and no reason was suggested why their sworn statements should not be believed. In my opinion, these observations of the learned Chief Justice in Madhukar's case correctly set out the position viz., that when the Court has before it a proceeding which is not the main proceeding for proving the guilt of the accused, but a subsidiary proceeding in the course of the trial, and certain facts have to be proved for that purpose, it is the settled practice of this Court ever since its inception that the necessary facts had to be judged from the affidavits filed before it, and that it is only if the Court thinks it necessary to do so that it might, in an exceptional case, call for oral evidence: I have, therefore, no hesitation in rejecting this contention of Mr. Jethmalani.
24. That leaves for my consideration the 2nd and the 4th propositions of Mr. Jethmalani, both of which may be conveniently dealt with together, as they raise questions of fact, and in substance amount to this, that having regard to the facts of the present case, and particularly the delay on the part of the prosecution, even if the Court has the power to issue a commission, it should not exercise the same. That is precisely what was formulated by me as the third question that arises for decision in this case, and the same would, therefore, also be disposed of by the ensuing discussion. It is true that when this matter went before the Supreme Court on the question of the cancellation of the bail of accused No, 2 that Court in the concluding paragraph of its judgment observed that, from the correspondence placed before it, it did appear that during the pendency of the appeal the prosecution had refrained from taking any steps for the examination of the German witnesses and that the delay in the examination of those witnesses was caused entirely by the laches of the prosecution, and it was for that reason that the Supreme Court directed that the order cancelling the bail of accused No. 2 would operate only till June 26, 1967. At that stage, however, there was no reciprocal arrangement under which evidence could have been recorded on commission in Germany which was actually finally notified only by the notification dated September 9, 1969, as already stated above. The delay that would have to be considered in connection with this argument of Mr. Jethmalani is, therefore, the delay that has occurred after the Supreme Court made those observations on May 4, 1967 and gave time to the prosecution till June 26, 1967. In my opinion, however, Mr. Khandalavala has, in the course of his able arguments, given us a complete answer to the objection on the ground of delay which Mr. Jethmalani has raised. As soon as the judgment of the Supreme Court was delivered on May 4, 1967, it appears that the prosecution contemplated applying for the issue of a commission to examine witnesses in Germany but, pending the making of that application, it applied on June 26, 1967 to the trial Magistrate to proceed with the cross-examination of the witnesses in India who had been examined before the framing of the charge. On July 10,1967, an application to examine witnesses in Germany on commission was actually made to the trial Magistrate, which was refused by the trial Magistrate on August 8, 1967. From that, the prosecution applied in revision to this Court and the said application was disposed of by my brothers V. S. Desai and Wagle by their judgment dated August 9, 1968 to which I have already had occasion to refer in this judgment. It is, however, pertinent to note that my brother Wagle who delivered the judgment of the Bench in the said case observed that unless there was a reciprocal arrangement between our country and Germany, it would be futile to issue commission. Mr. Jethmalani sought to contend that the prosecution itself had said that under a procedure known in Germany as Petty Legal Aid evidence could be recorded on commission even without a permanent reciprocal arrangement between the two countries. Mr. Khandalavala has, however, in that connection drawn my attention to the fact that, even for that purpose, an ad hoc reciprocal arrangement at least for a single case would have to be entered into between our country and Germany, which our Government was not prepared to do. This position is recorded in the judgment of my brother Wagle, and it was under those circumstances that Mr. Khandalavala did not press before that Division Bench the prayer for the issue of commission to a German Court as the difficulty in the way could not be got over. Thereafter, the prosecution applied for special leave to appeal to the Supreme Court from the judgment of my brothers V. S. Desai and Wagle, and that application was withdrawn only on November 4, 1968. The order discharging accused Nos. 2, 8 and 7 in the present case was made by the trial Magistrate on February 26, 1969, and it cannot, therefore, be said that the prosecution had ample opportunity to apply for the issue of a commission to Germany prior to the discharge of those accused persons. Moreover, it was only after a permanent reciprocal arrangement was arrived with Germany that the present application for commission could be made, and indeed, the present application was filed as soon as the prosecution came to know that such a reciprocal arrangement had been concluded, and even before the saraf had been notified. Having regard to these facts, I am afraid, there is no substance in the contention of Mr. Jethmalani that the prosecution has been guilty of such delay in applying for a commission to examine witnesses in Germany that, even if the Court has the power, it should not exercise it in favour of the prosecution. It is true that the proceedings in this case have been protracted for several years, but that is partly due to the complexity of the facts and the enormity of the task before the prosecution in which it had to gather material from two countries, collate it and thereafter get the necessary evidence to be placed before the Court. It is also due partly to the conduct of accused No. 2 in intimidating and tampering with the German witnesses for the prosecution.
25. In the result, I have come to the conclusion that the present case falls within the term 'inconvenience' in Section 508 of the Criminal Procedure Code and an order for the issue of commission can be made under the said section. I also hold that the High Court has inherent power under Section 561A of the Criminal Procedure Code to issue a commission in cases not falling within Section 503 of that Code. Lastly, I hold that there is nothing placed before us which would show that the power which, according to me, the High Court undoubtedly has to issue a commission, should not be exercised on the facts of the present case.
26. The only question that survives is, what provision, if any, should be made for the expenses of the accused persons who will have to make arrangements for being represented at the taking of evidence on commission in Germany for the purpose of cross-examining, if necessary, the prosecution witnesses who will be examined there, having regard to the fact that the ends of justice require that the accused should have the fullest opportunity to cross-examine them. It is for that very reason that the Supreme Court has laid down in Dharmanand's case (para. 10) that the procedure by way of interrogatories for the purpose of examination of a witness on commission should be resorted to only in unavoidable situations. If the right of cross-examination is, therefore, not to be rendered infructuous, in my opinion, provision should be made for the expenses that would have to be incurred by the accused persons for the purpose of being represented by lawyers in order to cross-examine the prosecution witnesses in Germany. As has been pointed out by me earlier in this judgment, none of the large number of cases that were cited before us in regard to the examination of witnesses on commission, deal with witnesses being examined in a foreign country and the question of providing for the costs of the accused persons has not been discussed or decided in any of them. An order for payment of a lump sum of Rs. 300 by the prosecution to the accused was, however, made in the case of Asst. Govt. Advocate v. Upendra, Nath Mukerji : AIR1981Pat81 . A contrary view has no doubt been taken by the Rajasthan High Court in the case of State of Rajasthan v. Abdul Aziz in which it has, in terms, been held (para. 5) that there is no provision of law whereby the Government can be made to pay the expenses of the counsel for the accused to go to Bombay for the purpose of cross-examining witnesses on commission in Bombay. I, however, do not approve of the view taken in the Rajasthan case for the simple reason that if the High Court has inherent power to issue a commission in a case which may not fall within the provisions of Section 508 of the Criminal Procedure Code, surely it has the inherent power to make an incidental order for the payment of the expenses of the accused persons or to make the order for examination on commission conditional by or upon such terms as it may think fit to impose. I, therefore, hold that the Court has the power to direct the prosecution to pay off the expenses of the accused in a proper case.
27. The further question that arises in the present case, however, is whether the Government should be made to pay separate amounts by way of expenses to each of the accused persons, or whether a lump sum should be awarded, or the accused persons should be made to appear through a single counsel or in groups. I am afraid, an accused person is entitled as of right to be represented by a lawyer of his own choice and he cannot be compelled to be represented by the lawyer of any one or other of the accused persons in the same case, however, able or eminent that lawyer may be. It is true that the interests of the seven accused in the present case do not conflict in any manner and are in fact the same, having regard to the fact that the prosecution case itself is that there was a conspiracy entered into between them for the purpose of committing the offences in question. Even so, as already stated by me above, I am not prepared to make an order either for a lump sum by way of expenses, or to make an order whereby one or other of the accused persons would have to be represented in Germany by a lawyer other than a lawyer of his own choice. As far as accused No. 2 is concerned, there is however a concluded finding of fact, both of the High Court as well as of the Supreme Court, that he had intimidated and tampered with the German witnesses whom the prosecution intended to examine and he is, therefore, responsible for creating the situation in which the present order for the issue of a commission for the examination of those witnesses has become necessary. In my opinion, accused No. 2 is not 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, but the other accused are so entitled.
28. I agree.
29. In the result, we hold that the prosecution must pay to each of accused Nos, 1, 8, 4, 5 , 6 and 7 tourist class air fare for one lawyer plus Rs. 100 per day for the expenses of the stay of the lawyer in Germany during the actual time required for executing the commission. We order that the witnesses mentioned in para. 4 of the present petition be examined in Germany by the appropriate Court or authority, and that the commission be returned to this Court on or before May 31, 1970. The prosecution as well as the accused persons are permitted to take the exhibits on the record of this case to Germany for the purpose of examining or cross-examining the witnesses who are to be examined there, on furnishing true copies thereof and complying with such other formalities as may be required by the office. The party taking any of the exhibits as aforesaid will be required to give an undertaking to produce the same in this Court or have the same forwarded along with the commission papers back to this Court.