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TMI Blog2009 (9) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant, already four witnesses have been examined, but none of the witnesses has been cross examined by the accused. At this stage, the respondent herein filed a petition before the trial Court under Section 311 Cr.P.C, for issuing summons to the complainant and to examine her, as her evidence is essential for the first decision of the case. The trial Court also allowed the application filed by the respondent under Section 311 to examine the complainant as a witness. It is not mentioned in the petition filed by the accused that whether complainant is to be examined as court witness. In the said circumstances, the application under Section 311 Cr.P.C being filed by the accused for summoning the complainant, it amounts to examining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after the trial Court considering the reasons given by the petitioner herein on medical grounds permitted the petitioner to be examined at her residence by appointing a Commissioner but the learned Sessions Judge, without giving any sufficient reasons, had reversed the order. 3. The learned Counsel appearing for the respondent submitted that the learned Magistrate had erroneously invoked the provision under Section 284 Cr.P.C and on earlier occasion, the complainant avoided entering into the Box and she is represented in the complaint only by her husband and she had come forward with an application under Section 284 Cr.P.C only after knowing that she could not escape from entering into the Box as application filed under Section 311 Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtant witness by prosecution could be commented at the time of argument by the accused for drawing an inference in favour of the accused. Though the learned Magistrate has erroneously allowed the application filed by the accused under Section 311 Cr.P.C., for examining the complainant as a witness, at present, the complainant herself had come forward to examine her as a witness. In the affidavit filed by the complainant also, it is mentioned that the complainant is ready to give evidence by filing the proof affidavit. 7. This Court now feels that though the learned Magistrate has erroneously allowed the application filed by the accused under Section 311 Cr.P.C for examining the complainant, now as the complainant herself has come forward t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter: Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness. (2) The court may, when issuing a commission for the examination of a witness for the prosecution direct that such amount as the court considers reasonable to meet the expenses of the accused including the pleader's fees, be paid by the prosecution. As per the above provision, when the Court feels that the witness cannot be procured wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such court or officer, and sent to such authority for transmission as the Central Government may, by notification prescribe in this behalf. As per Section 285(1) Cr.P.C no Advocate could be appointed as Commissioner for recording the evidence of witness. 11. Section 286 Cr.P.C is as follows: 286. Execution of commissions. Upon receipt of the commission, the Chief Metropolitan Magistrate of Chief Judicial Magistrate, or such Metropolitan or Judicial Magistrate as he may appoint in this behalf, shall summon the witness before him or proceed to the place where the witness is, and shall take down his evidence in the same manner, and may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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