1. The prosecutor in this case, the Nizam of Hyderabad, was examined and cross-examined under a commission issued by the Chief Presidency Magistrate, during an enquiry before him, under the terms of Section 503 of the Criminal Procedure Code. Prima facie upon that section alone the deposition given under that commission would be capable of use only before the tribunal which issued the commission. But it has been suggested that by virtue of Section 507 it followed that the evidence taken under that commission by the Magistrate is admissible in this Court on the present trial. It is contended that the words may, subject to all just exceptions, be read in evidence in the case' apply not only to the enquiry going on before the Magistrate, but also to the subsequent trial before this Court. I think that is not so for several reasons. The sections must be construed distributively. The rational construction of the word 'case' in Section 507 is that the evidence is to be used during the course of the enquiry or other proceeding before the Magistrate. The Magistrate had only to enquire whether there was a prima, facie case or not, and on the question of the commission he had to consider whether delay, expense, or inconvenience would be occasioned on chat enquiry if the Nizam had to attend to give his evidence. His decision upon that point was absolutely conclusive, but not so upon the question of the admissibility of the evidence. In other words, the propriety of the admission of the evidence should be decided, not by the Magistrate, but by the Court trying the case, and all convenience is on that side; otherwise the Magistrate, who has only to decide upon the question whether an unreasonable delay, expense or inconvenience would be incurred by compelling the attendance of the witness, would be deciding that the propriety of the admissibility of evidence in a particular case is to be binding on another Court.
2. The case appears to me to be covered by authority. There is the case of Empress v. Dabee Pershad I.L.R. 6 Cal. 532 and an unreported case, the records of which I have sent for, which are sufficient authority, had I otherwise doubt of my construction of the section. I find in the unreported case an express decision of Prinsep and O'Kinealy, JJ., upon this point, namely, upon the power of a Judge to set aside a conviction upon the ground that a Sessions Judge had allowed to be used before him evidence taken under a commission issued by a committing Magistrate without first satisfying himself that the circumstances were such as warranted the issue of a commission under Section 503 of the Code. There is also the case of the Queen-Empress v. Burke I.L.R. 6 All. 224. Both on reason and authority, therefore, I hold that Section 507 does not render evidence taken on commission issuing from the Magistrate's Court binding on this Court.
3. But is it admissible under Section 33 of the Evidence Act? That section differs altogether from the language used in the Code. The Code allows the issue of a commission in the case of unreasonable delay, expense or inconvenience. If the prosecution had desired to obtain evidence on commission before this Court upon the grounds of inconvenience, expense or delay, they might either have applied for it to this Court of Sessions, or have applied to the High Court after commitment for a fresh commission. They took neither of these courses, and they now desire to make use of evidence in this Court obtained by a former commission issuing from the Magistrate's Court. With reference to Section 33, the evidence no doubt was taken before a person authorized by law to take it, but the witness, the Nizam, is not dead, and it cannot be said that he cannot be found, nor that he is kept out of the way, and it is not suggested that there would be any delay. The only objection to obtaining his presence here that can be raised is on the ground of expense of attendance, which it is alleged would be so great as to render his attendance unreasonable under the circumstances of the case. I do not say that Section 503 does not include any party to a proceeding, but it is certainly primarily intended for the purpose of some witness other than the parties principally concerned--persons 'whose presence could not be obtained without an amount of delay and expense, which under the circumstances of the case the Court considers unreasonable.'
4. This case is one said to turn on a conversation between the prosecutor and the accused, and, therefore, if the evidence of the prosecutor could be obtained, it ought to be so obtained. It is of the highest importance that his evidence should be heard by the jury. On the other hand, if there was sufficient evidence to show that the expense would be unreasonable, the attendance of the witness might be dispensed with. There is evidence of expense--that given by Hormusjee Nusserwanjee in his affidavit, the third and fourth paragraphs of which are the only paragraphs which deal with expense; the rest of the affidavit deals with matter which may be of importance, but which I have no power to consider--they are matters of State policy. The gentleman who made the affidavit said in an off-hand way that the Nizam could not travel to Calcutta without a thousand people, or without his zenana, and this from motives of State policy. The cross-examination shows the absurdity of the views of Hormusjee Nusserwanjee as to expense. I think the case is not brought within Section 33, and the evidence cannot therefore be read. But if an application is desired to be made in order to facilitate the coming of His Highness here, I shall be glad to consider it.
5. The Advocate-General (Sir Charles Paul).--Under these circumstances I apply for the issue of a commission to examine the Nizam on the grounds stated in the affidavit of Mr. Hormusjee Nusserwanjee.
6. [Wilson, J.--The difficulty seems to be in the time at which you make your application. The jury are sworn.]
7. Mr. Inverarity.--It would be without precedent to stop a trial to issue a commission to Hyderabad. It is impracticable to go on with the case and the commission at the same time. The prosecution have had time since October to make this application. The inconvenience alleged is not really that of the Nizam. The proclamation issued by the Nizam stated that the Nizam had no objection to appear in Court. But that 'the love of his subjects was so great' that they objected to his giving evidence. Then does Section 503 apply to complainants? The only inconvenience to the Nizam is that he is the Nizam. The interests of the accused have not been noticed by the other side
8. The Advocate-General (Sir Charles Paul) in reply.
9. I do not think I can grant this application. I think that to do so would be wholly without precedent after the jury have been sworn, and whilst the trial is proceeding I do not think it would be right to do so. It would lead to great difficulties and to considerable inconvenience if I were to allow the case to be postponed. I do not see how the trial and the commission can go on at the same time. I do not think I can risk the danger of granting an adjournment and allowing the jury to scatter. The prosecution are hound to be ready with their case. I cannot grant the application.