M. L. Jain ( 1 ) IT is alleged that the accused Narang brothers proprietors of the Narang Overseas (Pvt.) Ltd. , Delhi, were engaged in exporting antiquities outside India. In May, 1965, they exported 12 cases including a rare 10th century stone sculpture of Shiva Parbati mounted on Nandi valued at several lakhs to M/s Everest Rissiga Inc. New York. The second consignment consisting of 16 cases containing antiquities was intercepted and seized in Oct. 1965 before shipment was completed. These activities relate to R. C. No. 17/66 and R. C. No. 21/66, while the present case pertains to R. C. No. 4/76, which arose like this. In 1920, two sand-stone three feet high pillars with carved human figures were struck by a farmer while ploughing a field and were removed and placed at the Suraj Kund temple in village Amin in District Karnal of Haryana. They were being worshipped by the people and had found mention in the report of the Archeological Survey of India of 1921-22. They disappeared in the night intervening 31. 3. 67 and 1. 4. 67. A case was registered in the Police Station, Bhutana, u/s 380 IPC. The pillars were recovered on 2. 5. 1967 from Faridabad and were kept in the strong room of the said police station. On 6. 7. 7 a team of experts from the National Musem, New Delhi, after examining the pillars, found that they were of great antiquity and value, being of Sunga period, 2nd Century B. C. A charge sheet was filed in the court of Shri R. K. Sen, Judicial Mgte. , Karnal, against Bali Ram Sharma and others u/s 380/120-B IPC. In Feb. 1968, the said Narang Brothers got scent of the value of these pillars and they devised a scheme to acquire them. Accused Ram Lal Narang accompanied by their friend Narender Nath Malik of Karol Bagh and Shri B. N. Nagpal, District and Sessions Judge, Delhi, went to Karnal and met Shri Hira Lal Mehra, CJM Karnal, who though on transfer, was still there busy packing during the joining time. They contacted Shri Sen through Shri Mehra and Shri Adish Kumar Jain, a Sub- Judge. Prompted by a promise of a large price for the job, Malik made an application on 1. 3. They contacted Shri Sen through Shri Mehra and Shri Adish Kumar Jain, a Sub- Judge. Prompted by a promise of a large price for the job, Malik made an application on 1. 3. 1968 written in his own hand and presented it in Chamber to the said R. K. Sen requesting for release of the pillars to him from the police custody on pretext that they were required for archaeological study for a temporary period. He claimed that he was an eminent arcliaeologist, and that he was so, was certified by the said Shri Mehra. Shri Sen called a report from the Police. A head constable who claimed to be the S. H. O. in the absence of his superiors, already chanced to to be there and made the requisite report at the instanct of Shri Mehra that the police and Panchayat had no objection to the request of Shri Malik. Since Shri Sen was, due to some burn injuries, unable to write. Shri Mehra wrote the order for him and Shri Sen signed it, allowing release of the pillars from Bhutana P. S. to the custody of Malik. The pillars were then brought in a truck to the Defence Colony residence of Narang brothers at Delhi and then to their factory in Kotia Mubarakpur where replicas of the original pillars were prepared with the help of well known sculptor brothers Balkishan and Natwar Lal. On 27. 5. 68 one set of the replicas was delivered in the court and deposited in the strong room of P. P. , Karnal, upon the orders of Shri Sen. The case in the court of Shri Sen ended in an acquittal on 27. 9. 68 and the pillars were directed to be handed over to Amin Temple. Later on, Narangs got two more sets of replicas prepared on the basis of photograph and tracings which had been taken at the time of preparation of the first sets of replicas. One of these two sets was intercepted in Dec. 1968 while being taken out of India and were suspected to be valuable antiques. The SPE launched an investigation, vide RC 8/1969. On 28. 2. 1970 an expert of the National Museum examined the pillars at Amin and he declared that they were fake. Malik was arrested on 8. 5. 1970 in that case. 1968 while being taken out of India and were suspected to be valuable antiques. The SPE launched an investigation, vide RC 8/1969. On 28. 2. 1970 an expert of the National Museum examined the pillars at Amin and he declared that they were fake. Malik was arrested on 8. 5. 1970 in that case. Thereafter, one more case R. C. No. 2/71 was registered on 19. 2. 71 u/s 120-B/420/406 IPC. That the original pillars had been replaced by the replicas was further confirmed by a committee of six experts on 29. 2. 72. After investigation a charge sheet was filed on 30. 12. 72 in the court of Special Judge, Arnbala, u/s 120-B/420 IPC against Malik and Mehra. It appears that the original pillars along with a set of replicas had been smuggled out of India and had arrived in London sometime in 1974-75. In may, 1976, the CBI received information from the Scotland Yard that the original pillars were lying in the warehouse of M/s Spinks and Sons London, and M. L. Narang @ Manu Narang was trying to dispose of them at a fabulous price. On 5. 5. 76 the pillars were seized by the London Police and Manu Narang was arrested on 6. 5. 76. On 11. 5. 76 the pillars were shown to an expert of British Museum, London who was of the opinion that those were the original ones and belonged to 2nd century B. C. Then, on 13. 5. 76 R. C. 4/76 was registered u/s 411 IPC and S. 25 of the Antiquities and Art Treassures Act, 1972 read with S. 120-B Indian Penal Code against Manu Narang and others. On 26. 6. 1976 Malik confessed and asked for pardon. He was granted pardon on 3. 7. 76, Malik, Nagpal and Adish Jain have since then died. Charge sheet was filed on 20. 7. 1976. In August, 1976 an Indian expert sent to London and he identified the pillars in the Scotland Yard. On 30. 12. 1976, the London Police handed over the pillars to the Indian High Commission. They were brought to India on 7. 5. 1977 and lodged in the National Museum where they are on display. On 16. 5. 1977 the case against H. L. Mehra pending in Ambala was allowed to be withdrawn and a Supplementary charge sheet was filed on 1. 11. They were brought to India on 7. 5. 1977 and lodged in the National Museum where they are on display. On 16. 5. 1977 the case against H. L. Mehra pending in Ambala was allowed to be withdrawn and a Supplementary charge sheet was filed on 1. 11. 1977 roping H. L. Mehra in the present case. ( 2 ) THE Government of U. K. was requested for extradition of the accused in all the three cases mentioned above. A Met. Sti. Mgte. committed them to prison pending their return to India. The orders of detention were revoked on a writ of habeas corpus by the Q. B. D. on the ground that a fair trial after such a long period was not assured in India. But the House of Lords disagreed with this view on 23. 3. 1977 and restored the orders of the Magistrate in respect of the offence relating to pillars only, vide Union of India v. Manoharlal Narang (1977)2 All. E. R. (HL) 348. The result was that Manu Narang and Om Parkash Narang were extradited and brought from London on 27. 7. 1977 for being tried here in this case along with Ramlal Narang. Mehra applied for pardon on 14. 3. 1978. On 19. 3. 1978 he was granted pardon and the case was committed to the court of Sessions. On 8. 5. 1979 charges were framed against the accused u/s 120-B, 406, 411,409 and 409 and 109 IPC. No charge was framed u/s 25 of the Aandat Act, 1972 because the learned Additional Sessions Judge thought that the Act came into force after offence was committed. They pleaded not guilty. Prosecution evidence commenced on 16. 7. 1979. The 131 witnesses comprised Indian as well as foreign nationals. ( 3 ) ON 6. 6. 1980 the learned trial Judge directed that in case witnesses are to be examined on commission, the Prosecution should obtain necessary orders well in time so that the dates fixed for examination of witnesses do not go waste. Yet no steps were taken and in spite of several requests of the defence to proceed with the case day-to-day, it proceeded with the pace in the manner other cases in our courts do. On 14. 4. 1982 the case was adjourned to 14. 5. 1982 for prosecution evidence. On 16. 4. 1982, the accused filed an application for postponing the date. On 14. 4. 1982 the case was adjourned to 14. 5. 1982 for prosecution evidence. On 16. 4. 1982, the accused filed an application for postponing the date. The court rejected the application, but directed the prosecution to bring all local witnesses on 14. 5. 1982 and to give a list containing the name of the witnesses who are abroad and are proposed to be examined. The order sheet of 14. 5. 1982 shows that the two local witnesses, he failed to appear. The court directed that they be produced on 30. 7. 1982 the date fixed for examination of two foreign witnesses namely (1) F. G. Haire and (2 ). Allan Branch, detective seargent. But only one of them, namely Allan Branch arrived. His examination was concluded on 5. 8. 1982. But the other witness failed to turn up. ( 4 ) WHILE other local witnesses were being examined, the accused made an application on 26. 8. 1982 in this court for directions to the prosecution to complete its witnesses. Avadh Behari J. passed the following order on 7. 9. 1982. "after hearing counsel for the parties, I think the proper order to make will be this. On the next date the remaining foreign witness, if he is present, will be examined. If he is not present, the prosecution will examine the investigating officers in this case who are nine in number according to Mr. Khalidi. The evidence of the Investigating Officers will be taken from day to day. If the foreign witness is present either on 16th or on any of the days on which the 1. 0. s are being examined, the foreign witness can be examined". ( 5 ) THE examination of the I. O. was concluded by 15. 10. 1982 making a tally of 58 witnesses. The request of the prosecution for grant of time for production of Mr. Haire was rejected and the prosecution evidence was closed on 20. 10. 1982. Against this order, the prosecution moved in this court an application on 25. 10. 1982. Goswamy J. passed the following order on 4. 11. 1982. "the prayer is that one final opportunity be granted to the prosecution for examining the said foreign witness. Mr. Khalidi also undertakes that if the case is fixed for December 21, 1982 for examination of the foreign witness, the prosecution will not ask for any further adjournment. 10. 1982. Goswamy J. passed the following order on 4. 11. 1982. "the prayer is that one final opportunity be granted to the prosecution for examining the said foreign witness. Mr. Khalidi also undertakes that if the case is fixed for December 21, 1982 for examination of the foreign witness, the prosecution will not ask for any further adjournment. In case the foreign witness is not available for being examined on that date he will not ask for adjournment. Considering the importance of the evidence of the foreign witness as stated in the petition I am inclined to allow this petition, of course subject to the undertaking given to this court. For the reasons recorded above this petition is allowed and the impuged order is set aside. The petitioner will be entitled to examine the foreign witness and the trial Judge will fix the case for evidence of the said foreign witness on December 21, 1982. After the said date it would be deisrable if the court can proceed with the statements under section 313 Criminal Procedure Code. and other defence evidence from any day-to-day if convenient to the court. In any case the learned trial Judge will try to conclude the trial not later than February 28, 1983". ( 6 ) IN pursuance of this order, the trial court appointed 21. 12. 1982 for production and examination of Mr. Haire. On 3. 12. 1982 the Ministry of External Affairs received a telex message from its High Commission in London that Mr. Haire will not come to India for evidence. However, if the proceedings are held in London Mr. Haire will give evidence in the case. On 18. 12. 1982 the present petition was therefore filed in this court for direction to the trial court to issue commission. Since Commission was to be issued, they also requested that five more witnesses, namely, P. O. Runacres, J. R. Webb. A. S. Wood, D. Barett and Terry Bell may also be allowed to be examined on commission. Meanwhile, on 21. 12. 1982, the trial court closed the evidence and appointed. 19. 1. 1983 for examination of the accused. ( 7 ) ON 3. 1. 1983 an application for civil contempt was filed in this court on the ground that the prosecution had broken its undertaking to produce the witness. That application was dismissed on 12. 1. 83. ( 8 ) ON 13. 19. 1. 1983 for examination of the accused. ( 7 ) ON 3. 1. 1983 an application for civil contempt was filed in this court on the ground that the prosecution had broken its undertaking to produce the witness. That application was dismissed on 12. 1. 83. ( 8 ) ON 13. 1. 1983 a reply to the present petition was filed. I have since then heard the P. P. and Shri A. K. Sen and S. Harjinder Singh counsel for the accused. They have urged that the present petition be dismissed. Since I took time for consideration, I stayed the proceedings in the court below. It stands adjourned to 9. 2. 1983 to await my orders in the present petition. Since that I have called the record of order sheet and evidence to verify the facts. The p. p. has also supplied the copies of the police statements of the aforesaid six foreign witnesses. ( 9 ) IT was urged on behalf of the prosecution that they have made serious attempts to procure the presence of Mr. Haire and other foreign witnesses, but they failed to persuade them to come to India for purposes of giving evidence. The evidence of the witnesses is very material for the success of the prosecution. In the absence of the evidence of these witnesses, the prosecution case will seriously suffer.-It was, therefore, prayed that the London based witnesses be allowed to be examined on commission. When I asked why an application in this regard was not made to the trial Court, the prosecution submitted that they did not want to risk another contempt applicaion and had to invoke the jurisdiction of this court for the purpose. ( 10 ) THE defence, on the other hand, contended that it was made clear as early as 26. 3. 1980 by trial court that if witnesses are to be examined on commission, steps should be taken in this regard. But what the prosecution did was that it elected toproduce only two foreign witnesses of whom Allan Branch has been examined. Therefore, no more witnesses than one, namely Haire could be permitted to be examined. In respect of Haire too, it was urged that the order of Avadh Behari J. of 7. 9. 1982 had made it plain that the evidence of the foreign witnesses must also be completed along with the I. 0. Therefore, no more witnesses than one, namely Haire could be permitted to be examined. In respect of Haire too, it was urged that the order of Avadh Behari J. of 7. 9. 1982 had made it plain that the evidence of the foreign witnesses must also be completed along with the I. 0. At any rate, by the order of Goswamy, J. 4. 11. 82 it was finally settled that only one opportunity will be given to the prosecution to examine only one foreign witness. It was urged that no adjournment for evidence can be allowed at this stage in contravention of S. 309, Cr. P. C. It was further contended that if this court now grants any further opportunity and allows the examination on commision, it amounts to review of its earlier order which is not permissible u/s 362 Criminal Procedure Code. ( 11 ) WITH regard to the first contention, no one can dispute that a fair and expeditious trial is not only an aim to be achieved but also, if one can say so, a right of an accused person, yet S. 309 envisages postponements and adjournements of trials though for reasons to be recorded and for a reasonable time only. The prosecution, therefore, can for valid reasons seek adjournment for a reasonable time. First Contention of the respondents, therefore. fails. ( 12 ) FOR the second contention, reliance was placed upon State v. Ramchander AIR 1979 SC 17, and Naresh v State (1981) 3 SCC 74 , to urge that the High Court even acting u/s 482 Cr. P. C. cannot alter or review its judgement or final order disposing of the case except to correct a clerical or arithmtical error. Now, when Avadh Behari, J. directed that the foreign witness if present may be examined while the 1. 0. are being examined day to day and yet when Goswami, J. gave one more chance, albeit last, to the prosecution to produce Mr. Haire it cannot be said that while doing so, he had done anything not permissible by S. 362 Cr. P. C. Both the orders do not dispose of the case finally. These are the type of orders intermediary or interlocutory in nature which are required to be made during the process of trial to meet any situation as and when it arises. P. C. Both the orders do not dispose of the case finally. These are the type of orders intermediary or interlocutory in nature which are required to be made during the process of trial to meet any situation as and when it arises. If the High Court had directed that the prosecution evidence be closed, it would not mean that upon a fresh application and upon showing a new situation has arisen, or something was not noticed which should have been noticed or the dictates of justice otherwise so require, the court should fold its hands in a state of helplessness and not remove a patent injustice. there is no such thing as never to receive evidvnce on either side or suo motu once the one side or the other has closed its evidence. In a criminal case the court is not an absolute neutral agency. It has only to be impartial and has to abandon neutrality and take initiative if justice cannot otherwise be fully rendered. I had observed in Suresh Kumar v. State 1981 Cr. L. J. 928 ; ". . . . . . . . . . . . WHERE the prosecution fails to produce any witness or fails to ask for process, and the court is of the opinion that such witness should be examined, 1 would rather consider it a duly cast upon the court to direct coercive process to compel the attendance of the witnesses. Merely because the prosecution is lethargic and neglectful, it does not follow that the courts sit back in despair and not compel the attendance of the witnesses. " ( 12 ) IF the witness is material on which the success or failure of the case of the prosecution or defence depends, the court can at any stage have him examined in the court or on commission as provided by law. Indeed, that is also the purpose of S. 311 Cr. P. C. I, therefore, reject the second contention. ( 13 ) LET us now see if it is a case in which commission for examination of the witnesses can or should be issued. S. 284 Cr. Indeed, that is also the purpose of S. 311 Cr. P. C. I, therefore, reject the second contention. ( 13 ) LET us now see if it is a case in which commission for examination of the witnesses can or should be issued. S. 284 Cr. P. C. provides that the court may dispense with the attendance of a witness and may issue a comission for his examination if- (a) the witness is necessary for the ends of justice, and (b) the attendance of such witness cannot be procured without an amount of unreasonable (i) delay, (ii) expense or (iii) inconvenience. S. 285 (3) Cr. P. C. provides that if a witness is in a country or place outside India and arrangemenis have been made with that country, the commission shall issue in accordance with the manner provided by the Govt. of India. S. 289 Cr. P. C. authorises adjournments for the execution of the commission. ( 14 ) THE evidence of the six witnesses seems to be absolutely necessary for the ends of justice. [in para 1 5 to 19, importance of witness is mentioned]. ( 15 ) IT is not now difficult to realise that the fortune of the case will largely, if not entirely, depend upon this evidence. If it were not so, neither the prosecution will insist nor will the accused protest. It is precisely because this evidence is of such a crucial and clinching nature, that the accused have grown impatient in 1983 for any delay in a case which began in 1968 and in which evidence commenced in 1979 and continued right upto Dec. 1982. To my mind, no case would be more fit and appropriate in which, even if the prosecution is not willing to bring the witness, -the court should insist to see that their evidence is brought on record. The first requirement for issue of commission, therefore, stands satisfied. But the other does not seem to be. It is not the prosecution case certainly not said so in their application that the examination of witness specially Mr. Haire if called to India, will entail unreasonable delay, expense or incovenience. Rather, the commission will cause a huge amount of money, considerable time and lot of incon- veninece to all concerned, unless incovenience is construed to mean any inconvenience such as will be caused to Haire by travel from London to India. Haire if called to India, will entail unreasonable delay, expense or incovenience. Rather, the commission will cause a huge amount of money, considerable time and lot of incon- veninece to all concerned, unless incovenience is construed to mean any inconvenience such as will be caused to Haire by travel from London to India. Their case is that Mr. Haire who was at one time willing to come to depose, has refused to do so at the last moment and has agreed to be examined in London. He has taken the prosecution by surprise. It means that the attendance of witness cannot be procured at all which is not a case contemplated by section 284. It is doubtful if S. 285 (3) Cr. P. C. which provides for arrangements for examination on commission of foreign witness, can be read independently of S. 284. Therefore, apart from a fear of contempt proceedings, the one good reason for invoking the jurisdiction of this court u/s 482 Cr. P. C. would be that the case may not be covered by S. 284 Cr. P. C. Should then this court invoke its power u/s 482 Cr. P. C. ? Antiques are our precious and proud possessions proving our ancient and great cultural heritage ignored at home but highly priced abroad, and so, the temptation for unscrupulous seekers of easy wealth to export them. In such cases, evidence of foreign witnesses alone can help in bringing such people to book. I think, therefore, that it is fit case in which this court should do so to secure the ends of justice : Seethe State v. Rajkumar (1970) 72 BLR 797. That apart, it is also necessary to give effect to the order of this Court dt. 4. 11. 1982 that the prosecution could examine at least Haire. If he cannot be compelled to come to court, the only way to procure his evidence is to allow his examination on commission. ( 16 ) RELATED is a question whether the court should also allow the other five witnesses to be examined on commission. Since I am directing issue of commission it will be unfair not to allow the prosecution to examine a few more material witnesses on commission which will cause no extra expenditure to the Exchequer. Petition accepted.