JUDGMENT Chowdhry, J. - In the course of the trial of the opposite parties, Shambhu Nath Garg, President of the District Board Bulandshahr and four others, in the court of the Judicial Officer Anupshahr an application for issuance of a commission for examination of the Deputy Coal Commissioner (Distribution) Calcutta as a witness was made by the complainant Kedar Nath Bhargava on 27-3-1957. That application was rejected by the trial court on 18-4-1357. The complainant went up in revision to the learned Sessions Judge of Bulandshahr who has made the present reference u/s 438, CrPC, recommending that the Magistrate's order be quashed and the commission for examination of the witness concerned be directed to be issued. 2. The opposite parties are being tried for offences punishable u/s s. 409, 420 & 120B, IPC, on the allegation, inter alia, that they obtained 15 wagons of coal on the strength of a letter of sanction dated 14-7-1952 issued by the then Deputy Coal Commissioner (Distribution) Calcutta ostensibly for the purpose of the District Board, but that in point of fact the coal was not used for that purpose but was misappropriated. The interrogatories accompanying the application for issuing the commission show that the witness was sought to be examined to prove the said letter of sanction and certain other matters. The learned Sessions Judge has made the aforesaid recommendation on the ground that the witness was formal one and his attendance could not be procured without an amount of expense which in the circumstances of the case he considered to be unreasonable. 3. The relevant provision relating to is-suance of commission for examintion of a witness in criminal cases is to be found in S. 503, CrPC. An objection raised in this Court by the Learned Counsel for the opposite parlies was that no commission need be issued under that provision since evidence of a formal character may now be given by affidavit u/s 510A newly added by the Code of Criminal Procedure (Amendment) Act XXVI of 1955. An objection raised in this Court by the Learned Counsel for the opposite parlies was that no commission need be issued under that provision since evidence of a formal character may now be given by affidavit u/s 510A newly added by the Code of Criminal Procedure (Amendment) Act XXVI of 1955. That section empowers the court of permit a party to give evidence of a formal character by affidavit and, if the court thinks fit, to summon the deponent at the instance for the opposite party for cross-examination as to the facts contained in the affidavit, but it does not empower the court to order either a party to give evidence of the aforesaid character by affidavit or any person to swear such an affidavit. That being so, where the party seeking to adduce such evidence does not wish or is unable, to avail himself of this otherwise convenient procedure, or where the person whose evidence is required is not willing to swear the affidavit, no question of recourse being had to the provisions of S. 510A of the Code arises. In the present case the Learned Counsel for the complainant was not agreeable to giving the required evidence by affidavit as he was not sure that the officer concerned at Calcutta would agree to swearing the affidavit merely on the request of the complainant. The objection of the Learned Counsel for the opposite parties to the issuance of commission on the basis of S. 510A of the Code is therefore untenable. 4. Two conditions must be satisfied before a commission u/s 503, Code of Criminal Procedure may be issued: it should appear to the court, firstly, that the examination of the witness in question is necessary for the ends of justice and, secondly, that the attendance of that witness cannot be procured without an amuont of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. Even if these conditions are satisfied, it would still be in the discretion of the court, a discretion to be judicially exercised no doubt, whether or not to issue the commission. One reason for refusing to exercise the discretion in favour of issuing the commission can be that the interests of the accused were likely to be prejudiced thereby. Even if these conditions are satisfied, it would still be in the discretion of the court, a discretion to be judicially exercised no doubt, whether or not to issue the commission. One reason for refusing to exercise the discretion in favour of issuing the commission can be that the interests of the accused were likely to be prejudiced thereby. Keeping this principle in view, the matter of issuance of commission in the present case was considered on an examination of the interrogatories filed on behalf of the complainant. 5. On a previous hearing of this case it was found that questions Nos. 4, 6, and 13 were vague and required clarification. The case was therefore adjourned to enable the Learned Counsel for the complainant to call the complainant for that purpose. Today an application has been filed by the complainant withdrawing the aforesaid questions. It was however found that there were still a number of questions the answers to which could be such as to prevent effective cross-examination by mere cross interrogatories. It was conceded on behalf of the complainant that most of these questions could not be answered without looking into some files of the Government. The witness in question could not therefore be effectively cross-examined on behalf of the accused without first examining those files. The Learned Counsel for the complainant had therefore to withraw all the rest of the questions except questions 1, 2, 3 and 5. He sought permission at the same time to add to the interrogatories a direction to the witness to produce certain documents. But a commission u/s 503, Code of Criminal Procedure is for examination of a witness and not for a direction to him to produce documents. The proper course to adopt in that regard would be to summon the documents, if that be otherwise permissible. On the questions in the interrogatories being reduced to the first, second, third and the fifth, the Learned Counsel for the accused stated that he had not objection to the commission being issued. 6. The proper course to adopt in that regard would be to summon the documents, if that be otherwise permissible. On the questions in the interrogatories being reduced to the first, second, third and the fifth, the Learned Counsel for the accused stated that he had not objection to the commission being issued. 6. The reference made by the learned Sessions judge is accepted to this extent that the order of the Magistrate dated 18-4-1957 is set aside and he is directed, on the complainant doing all that be needful in that behalf, to issue commission in accordance with the law for examination of the witness in question only with regard to questions 1,2, 3, and 5 of the interrogatories filed by the complainant with his application for commission dated 27-3-1957, but not with regard to any other question. As the trial has been pending for an inordinately long time 2 years and 4 months already, the Magistrate must see to it that the commission is issued and trial brought to a close without avoidable delay.