(1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:
Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union territory as a witness is necessary for the ends of Justice, a commission shall be issued for the examination of such a witness.
(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.
Author: ShadesOfKnife
Sample Format of 284 CrPC petition for Issuance of Commission
One can rely on Cr.P.C. 284 and Cr.P.C. 285 onwards, to ensure the absenting prosecution witnesses are properly re-oriented, either to come to Court for Examination and Evidence or be ready to invite the Chief Judicial Magistrate to their home for the exact same purpose. The below sample is only for your guidance. Customize it to your needs and file.
Ram Nath Sao @ Ram Nath Sahu and Ors Vs Gobardhan Sao and Ors on 27 Feb 2002
A division bench of Supreme Court passed this Landmark observation wrt the Sec 5 of Limitation Act 1963,
From Para 12,
12. Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute “sufficient cause” or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.
Citations : [2002 SCALE 2 334], [2002 SCC 3 195], [2002 AIR SC 978], [2002 ALLMR SC 2 588], [2002 SCR 2 77], [2002 AIR SC 1201], [2002 SUPREME 2 143], [2002 RD 93 556], [2006 JCR SC 1 93], [2002 LW 3 417], [2002 UC 1 718], [2002 BLJR 1 794], [2002 MLJ SC 2 85], [2002 ALR 48 101], [2002 JT SC 2 349], [2002 AIR SCW 978]
Other Sources :
https://indiankanoon.org/doc/826396/
https://www.casemine.com/judgement/in/5609adbce4b01497114121f8
Indian Oil Corporation Ltd and Ors Vs Subrata Borah Chowlek and Anr on 12 Nov 2010
A division bench of Apex Court held as follows with respect to granting exemption from limitation under Limitation Act 1963,
From Para 7,
7. Having heard the learned counsel, we are of the opinion that in the instant case a sufficient cause had been made out for condonation of delay in filing the appeal and therefore, the High Court erred in declining to condone the same. It is true that even upon showing a sufficient cause, a party is not entitled to the condonation of delay as a matter of right, yet it is trite that in construing sufficient cause, the Courts generally follow a liberal approach particularly when no negligence, inaction or mala fides can be imputed to the party.
From Para 11,
11.It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the Court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependant on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases.
Citations : [2010 SCC 14 419], [2011 AIR SC 0 269], [2011 LW 1 385], [2011 KCCR SC SN 1 44], [2011 MLJ 1 1010], [2011 LLN 2 43], [2011 CUTLT SUPPL 826], [2010 AIOL 787], [2010 ELT SC 262 3], [2010 SCALE 12 209], [2011 SCC L&S 2 581], [2012 SCC CIV 1 640], [2011 AIC 97 34], [2011 ALR 84 462], [2011 AIR SC SUPP 446], [2011 FLR 130 324], [2011 AIR SCW 269], [2011 JT SC 1 535], [2011 CAL LT 2 91]
Other Sources :
https://indiankanoon.org/doc/29521266/
https://www.casemine.com/judgement/in/5609aee4e4b01497114150a9
State of Maharashtra Vs Dnyaneshwar Laxman Rao Wankhede on 29 Jul 2009
A division bench of Apex Court cited precedents holding that,
From Para 20,
20. Even in a case where the burden is on the accused, it is well-known, the prosecution must prove the foundational facts. [See Noor Aga v. State of Punjab 2008 (9) SCALE 691 and Jayendra Vishnu Thakur v. State of Maharashtra and Anr. 2009 (7) SCALE 757]
From Para 21,
21. It is also a well-settled principle of law that where it is possible to have both the views, one in favour of the prosecution and the other in favour of the accused, the latter should prevail. [See Dilip and Another v. State of M.P. (2007) 1 SCC 450 and Gagan Kanojia and Another v. State of Punjab (2006) 13 SCC 516]
Citations : [2009 RCR CRI 4 217], [2009 AIR SC 0 5411], [2009 SCC 15 200], [2009 ALL MR CRI 0 3127], [2009 SLT 6 439], [2009 JT 12 516], [2009 KHC 0 5865], [2009 CCR 3 700], [2009 OCR 44 425], [2009 AIOL 968], [2009 AIR BOMR 5 781], [2009 ANJ SC 2 180], [2010 BOMCR CRI SC 1 247], [2009 JT 12 515], [2009 SCALE 10 355], [2010 SCC CRI 2 385], [2009 SCR 11 513], [2009 ECRN SC 4 602], [2009 AIR SCW 5411], [2009 CRLJ SC 4425], [2009 TLPRE 0 871], [2009 MADLJ CRI 4 335]
Other Sources :
https://indiankanoon.org/doc/791070/
https://www.casemine.com/judgement/in/5609aecbe4b0149711414cb2
Sabiya Begum Malka Vs State of U.P. and Ors on 18 May 2016
A division bench of Allahabad High Court (Lucknow Bench) imposed costs on 5 identified police officers (@Rs.15,000/- per officer) to be paid to the Petitioner-Mother of the deceased minor girl who was allegedly raped and murdered, because these 5 people did not register FIR and investigate the case for 6 months despite an Order u/s 156(3) by a competent Magistrate to do so.
From Paras 21-24,
21. In the case in hand though order was passed by the Magistrate under Section 156(3) Cr.P.C. on 3.9.2015 yet without any reason whatsoever, factual or legal, the F.I.R was not registered. Investigation was not under taken for over six months. The First Information Report has been registered after intervention of this court by way of seeking an explanation from the Station House Officer vide order dated 15.3.2016. The inaction of the concerned officers has interfered in administration of criminal justice delivery system.
22. As has been held in the inquiry report submitted by the Circle Officer concerned, the five Station House Officers named hereinabove, ignored the order passed by the Magistrate rendered under Section 156 Cr.P.C. and have also failed in discharging their statutory duty under Section 154 Cr.P.C. The petitioner, had to approach the Magistrate again. When no action was taken, the petitioner had to approach this Court with the grievance.
23. Considering the totality of the facts and circumstances of the case, we hereby impose costs in the sum of Rs.75,000/- to be collected from all the five police officers mentioned in the above portion of the judgment, to be paid to the petitioner.
24. The cost amount has been paid to the petitioner in court in cash today.
Index here.
Y.Narasimha Rao and Ors Vs Y.Venkata Lakshmi and Anr on 9 Jul 1991
A division bench of Apex Court gave these interpretations to the various conditions under Section 13 of C.P.C. while deciding a foreign judgment is enforceable in India or not.
From Para 12,
12. We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life.
Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in Section 41 of the Indian Evidence Act has also to be construed likewise.
Clause (b) of Section 13 states that if a foreign has not been given on the merits of the case, the courts in this country will not recognise such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim, or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate.
The second part of clause (c) of Section 13 states that where the judgment is founded on a refusal to recognise the law of this country in cases in which such law is applicable, the judgment will not be recognised by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the one under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on ground not recognised by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country.
Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilised system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to b extended to mean something more than mere compliance with the technical rules of procedure. If the rule of audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are file by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters, that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognised. This jurisdiction principle is also recognised by the Judgments Convention of this European Community . If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognised only it it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of clause (d) may be held to have been satisfied. The provision of clause (e) of Section 13 which requires that the courts in this country will not recognise a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the mater but may also be in relation to jurisdictional facts.
Citations : [1991 SCC CRI 1 626], [1991 CRIMES SC 2 855], [1991 SCALE 2 1], [1991 SCR 2 821], [1991 SCC 3 451], [1991 DMC SC 2 366], [1991 JT SC 1 33], [1991 LW 2 646]
Other Sources :
https://indiankanoon.org/doc/989920/
https://www.casemine.com/judgement/in/5609ac6be4b014971140ed08
Messers S.J.S. Business Enterprises Vs State of Bihar and Ors on 17 Mar 2004
A division bench of Supreme Court held as follows,
As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken.
The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226 . But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. But this Court has also held in C. B. Gosain Bhan V. State of Orissa 14 STC 766= 1963 (2) SCR 879 that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32 . Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits.
Finally,
In this case, admittedly the appellant has withdrawn the suit two weeks after the suit had been filed. In other words the appellant elected to pursue its remedies only under Article 226. The pleadings were also complete before the High Court. No doubt, the interim order which was passed by the High Court was obtained when the suit was pending. But by the time the writ petition was heard the suit had already been withdrawn a year earlier. Although the appellant could not, on the High Court’s reasoning, take advantage of the interim order, it was not correct in rejecting the writ petition itself when the suit had admittedly been withdrawn, especially when the matter was ripe for hearing and all the facts necessary for determining the writ petition on merits were before the Court, and when the Court was not of the view that the writ petition was otherwise not maintainable.
Citations : [2004 SUPREME 5 485], [2004 JT SUPP 2 601], [2004 ALLMR SC 5 793], [2004 SCC 7 166], [2004 AIR SC 2421], [2004 SCR 3 56], [2004 SCALE 3 374], [2004 ALD SC 5 84], [2005 ALT 2 4], [2004 BLJR 3 1739], [2005 COMPLJ SC 4 503], [2004 JCR SC 2 284], [2004 PLJR 2 171], [2004 COMPCAS SC 121 99]
Other Sources :
https://indiankanoon.org/doc/1770523/
https://www.casemine.com/judgement/in/5609adffe4b0149711412a94
Ramjas Foundation and Ors vs Union of India and Ors on 9 Nov 2010
A division bench of Apex Court held as follows,
From Para 14,
14. The principle that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in others courts and judicial forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. In Dalglish v. Jarvie 2 Mac. & G. 231, 238, Lord Langdale and Rolfe B. observed: “It is the duty of a party asking for an injunction to bring under the notice of the Court all facts material to the determination of his right to that injunction; and it is no excuse for him to say that he was not aware of the importance of any fact which he has omitted to bring forward. In Castelli v. Cook (1849) 7 Hare, 89, 94 Wigram V.C. stated the rule in the following words: “A plaintiff applying ex parte comes under a contract with the Court that he will state the whole case fully and fairly to the Court. If he fails to do that, and the Court finds, when other party applies to dissolve the injunction, that any material fact has been suppressed or not property brought forward, the plaintiff is told the Court will not decide on the merits, and that, as he has broken faith with the Court, the injunction must go.”
Citations : [2010 SCC 14 38], [2011 AIR SC 147], [2011 KCCR SC SN 1 8], [2011 LW 1 416], [2011 SCJ 2 391], [2011 MLJ 2 162], [2010 AIR SC 7091], [2010 CLT 4 351], [2010 SLT 8 156], [2010 DLT 174 100], [2010 AIOL 763], [2010 JT 12 134], [2010 SCALE 11 598], [2010 SUPREME 7 585], [2011 SCC CIV 4 889], [2010 AIR SCW 7091], [2011 RCR CIVIL SC 1 176], [2012 CUT LT 113 632]
Other Sources :
https://indiankanoon.org/doc/265836/
https://www.casemine.com/judgement/in/5609aee8e4b0149711415189
