1. This is a petition for revision of an order of a learned Magistrate vacating an earlier order which he had made directing certain evidence to be taken on commission.
2. The petitioner was charged with the offence of cheating. It was alleged that the cheating took place in this city on December 4, 1949. The defence was that the allegations were wholly false because the petitioner was not in Calcutta on the day in question, but was at Delhi where he resided from November 25, 1949 to December 30, 1949. If this allegation of the petitioner could be established, then quite obviously he had a complete defence to the charge of cheating.
3. The petitioner desired to examine witnesses in his defence and he informed the Court that he wished to examine the Manager of the Grand Hotel at which he alleged he stayed during his visit at Delhi. He also wanted to put in the Hotel register as evidence. Two other witnesses were also required by the petitioner, namely, a servant in the hotel and a person who was the owner-driver of a taxi cab which, it was alleged, drove the petitioner about daring his stay at Delhi.
4. The petitioner made an application to the learned Magistrate that a commission be appointed to examine these three witnesses at Delhi and on June 12, 1950 the learned Magistrate made an order for a commission Under Section 503 of the Code of Criminal Procedure. The parties were requested to put in interrogatories under 505 of the Code of (sic) certain interrogatories were put in on behalf of the accused. No interrogatories were filed on behalf of the complainant. Shortly after, an application was made to the learned Magistrate to vacate his earlier order and on June 17, 1950, five days after the making of the earlier order, he vacated it.
5. The order vacating the previous order was made on a petition filed by the complainant. In the first place it was said that in the interrogatories submitted by the petitioner a number of questions were set out and an omnibus question was included at the end, namely, such other questions as might be put to the witness. A strong objection was taken to this being included in the interrogatories. But it is clear that the accused assured the Magistrate that he would insist on no questions being put to the witnesses other than those stated specifically in the interrogatories. In other words, he gave up any right to ask any other questions to the witnesses.
6. The complainant also objected to a com-mission on the ground that certain documents would be produced and he could not cross-examine. He could very well cross-examine by sending a lawyer to Delhi. It must be remembered that the commission was ordered to save expense and the Magistrate, when he ordered the commission, had the petitioner in mind. The Court should help the defence as far as it can and I think the original order granting a commission was justified in the circumstances. The Magistrate when he made the order knew that the hotel register would be produced, but that did not prevent him from making the order. The learned Magistrate now seems to think that because the hotel register and possibly some account books belonging to the taxi driver may have to be proved, that is a ground for vacating the order. The books will have to be produced by the Manager of the hotel and the owner of the taxi and if the complainant thinks that these witnesses should be cross-examined, he must make arrangements to cross-examine them at Delhi. If this prosecution is too expensive for him when he can do the obvious thing and drop it unless he can induce someone to come to his assistance. Where it is a question of showing consideration either to the prosecution or to the defence then quite obviously the Court should lean in favour of the defence. The petitioner has been dragged into Court may be unjustly, but the complainant is in Court of his own free will. The position of the two parties is entirely different and that must also be borne in mind. In any event I can see no reason for vacating the order merely on the ground that certain books will have to be produced. As I have said that must have been in the mind of the Magistrate when he originally made the order.
7. The Magistrate seems to think that if these witnesses are examined on commission by interrogatories then he will not have the advantage of seeing and hearing them being cross-examined. If that is a good reason for refusing the commission then Section 503 should be wiped out of the Code, or used only for the examination of perfectly formal witnesses. The learned Magistrate also seemed to think that this commission would cause delay in the disposal of the case which was very old. Cases from Magistrates' Courts frequently come into this Court where the most inordinate delay has taken place without any person being at all interested. In any event, if the commission is ordered promptly there need be no delay. 8. It seems to me that the learned Magistrate vacated the order on grounds which were present to his mind when he first made the order and in any event none of the grounds stated by the learned Magistrate justify the vacating of the order which he originally made. It is a matter of life and death to the defence and I think a commission should be issued to examine the witnesses as originally allowed by the learned Magistrate.
9. In the result, therefore, I would set aside the order of the learned Magistrate dated June 17, 1950 and restore his order of June 12, 1950 directing a commission to issue. The proceedings in respect of the commission should take place with the utmost despatch. The Rule is accordingly made absolute.
10. I agree.