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Courts have to look over miscarriage of justice While Examining Witness on Commission Incapable of Attending Proceedings: Delhi High court

The Delhi High Court has observed that Court Must Prevent Miscarriage Of Justice While Examining Witness on Commission Incapable of Attending Proceedings. This was seen in the case of JEEVESH SABHARWAL v. ARUNA GUPTA & ANR. (CRL. M.C. 2385/2022). The judgement was presided over by single judge bench of HON’BLE MS. JUSTICE SWARANA KANTA SHARMA.

Facts of the case-

Respondent filed a complaint under Section 138 read with Sections 141 and 142 of Negotiable Instruments Act against the petitioners where the Court has to deal with a plea seeking quashing of the order passed by the Metropolitan Magistrate in a complaint case filed under the same act.

When the impugned order was passed, the complainant (respondent no. 1 in the petition) informed the Trial Court that she was suffering from serious ailments and was not able to conduct the case personally. It was submitted that she had authorised her son as Special Power of Attorney holder to conduct the prosecution on her behalf with the permission of the Court.

Therefore it was contended before the High Court that there was no clause in the SPA which authorized the SPA Holder to lead evidence on behalf of the complainant. It was however submitted that in case the complainant was unwell or infirmed, the Court can appoint a Commission which ought to have been done in view of sec. 142(1)(a) NI Act, which prohibits a Court from taking cognizance of any offence punishable under sec. 138 NI Act except upon a written complaint by the payee or holder in due course of the cheque.

Judgement –

The Delhi High Court has observed that Court Must Prevent Miscarriage Of Justice While Examining Witness on Commission Incapable of Attending Proceedings. “The question of examining the witness on Commission arises in the case where such a witness is disabled to attend the Court due to old age or hazardous condition of her health, not in a position to move about or the witness is incapable of attending the Court for any other reason. In such cases, the Court has to exercise its power to examine the witness to see that no such miscarriage of justice does takes place,” it said.

The court further added that “A reading of Section 284 CrPC makes clear that where a witness could not be procured before the Court and that it is so essential to meet the ends of justice, such witness can be examined through a Commissioner,”

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Judgement reviewed by Utkarsh Sahu

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