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2004 DIGILAW 100 (CHH)

Srinath and three v. State of Chhattisgarh

2004-05-13

L.C.BHADOO

body2004
ORDER 1. The accused/applicants have preferred this criminal revision under Section 397 read with Section 401 of the Cr.P.C., being aggrieved by order dated 14.10.2003 passed by the Additional Sessions Judge (Fast Track Court), Pendra Road, in Sessions Trial No.131/1995, whereby the learned Additional Sessions Judge rejected the application of the applicants (accused persons) filed under Section 284 of the Cr.P.C. and refused to issue commission for the examination of Dr. Sudhir Bhave of Nagpur. 2. Brief facts giving rise to filing of this criminal revision are that the accused/applicants are facing trial before the learned Additional Sessions Judge (Fast Track Court), Pendra Road, for commission of offence punishable under Section 306 read with Section 34 of the I.P.C. for abetting Shashi Prabha to commit suicide. It appears that in this case, prosecution closed its evidence and the statement of the accused persons were also recorded under Section 313 of the Cr.P.C. The accused persons cited Dr. Sudhir Bhave, a consultant Psychiatrist of Nagpur, as their defence witness, as their case is that deceased Shashi Prabha was a psychiatric patient, therefore, she was being treated by Dr. Sudhir Bhave. They had also submitted a certificate issued by Dr. Sudhir Bhave. On the request of accused persons the doctor was summoned to give his evidence. However, the doctor on receiving the summon wrote an application to the Additional Sessions Judge requesting therein that he is an extremely busy practicing Psychiatrist treating about 70-80 psychiatric patients daily. Leaving Nagpur for attending the esteemed Court will be difficult for him as it will put his numerous patients at inconvenience, and may be in the states of medical emergency. Hence, he requested the Court to kindly appoint a commission for recording his statement pertaining to the said case, and to send commission to him on a prefixed date. On this, the accused/applicants moved an application under Section 284 of the Cr.P.C. for examining Dr. Sudhir Bhave on commission. The said prayer was objected by the Public Prosecutor on the ground that if the commission is issued, then the trial would be delayed. 3. The learned Additional Sessions Judge after hearing the counsel for the accused persons and the Public Prosecutor, rejected the application on the ground that the sessions case is pending since 1995 and the evidence of the prosecution was closed on 17.08.1999 and since then, the matter is pending for defence evidence. 3. The learned Additional Sessions Judge after hearing the counsel for the accused persons and the Public Prosecutor, rejected the application on the ground that the sessions case is pending since 1995 and the evidence of the prosecution was closed on 17.08.1999 and since then, the matter is pending for defence evidence. It was observed that Pendra Road is at a distance of 500 kms. from Nagpur and it is on the train route, and if the commission is issued that will delay the trial, therefore, the doctor be summoned to give his evidence in the Court. 4. I have heard the learned counsel for the parties. 5. Learned counsel for the accused/applicants argued that since Dr. Sudhir Bhave is a very busy doctor and he is examining 70-80 patients daily and moreover, there is no direct train available from Nagpur to Pendra Road, any person coming from Nagpur is required to change the train at Bilaspur, therefore, it will take two days for Dr. Sudhir Bhave to come and go back. In the given circumstances, it is difficult for Dr. Sudhir Bhave to remain absent for two days from his hospital. Moreover, the accused/applicants are prepared to bear all the expenses, which are to be incurred for executing the commission. They are even ready to pay the expenses of the Public Prosecutor. 6. On the other hand, learned Panel Lawyer opposed the request of the counsel for the accused/applicants. 7. In this connection, relevant provisions of Section 284 of the Code of Criminal Procedure read as under: "284. When attendance of witness may be dispensed with and commission issued.--(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. (2) The Court may, when issuing a commission for the examination of 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." 8. Therefore, in order to issue commission for examination of a witness, first requirement is that the Court should feel that the examination of witness is necessary for the ends of justice, and secondly that the attendance of such witness cannot be procured without any amount of delay, expense or inconvenience, then and then only, the Court can issue commission for examination of the witness. As far as the first requirement is concerned, it is not disputed, because the case of the accused/applicants is that the deceased was undergoing psychiatric treatment being a psychiatric patient and the treatment was being given by Dr. Sudhir Bhave, as the applicants' defence is that the deceased was a psychiatric patient, that is why she committed suicide. Therefore, no doubt, the witness is material and it is necessary to examine him for the ends of justice. 9. Now, coming to the second condition whether the presence of witness cannot be procured without an amount of delay, expense or inconvenience, Dr. Sudhir Bhave has written in his letter to the Court that he is a psychiatrist doctor and he is examining daily 70-80 patients, therefore, it is not possible for him to remain out of his hospital for a day. Moreover, there is no direct train available from Nagpur to Pendra Road. One has to change the train at Bilaspur. Therefore, in any case, two days time is required to reach back to Nagpur. The inconvenience mentioned in the Section has reference to the age, infirmity or residence of the witness and also the remoteness of the place from where the witness has to come. It is true that this power under Section 284 of the Cr.P.C. must be used sparingly and in most deserving cases. 10. During the course of the arguments, it was informed that so far after passing the impugned order Dr. Sudhir Bhave has not turned up and his evidence has not been recorded. Therefore, looking to the fact that Dr. Sudhir Bhave is regularly attending 70-80 psychiatric patients at Nagpur, also looking to the distance between the Court at Pendra Road and Nagpur, where Dr. Sudhir Bhave has not turned up and his evidence has not been recorded. Therefore, looking to the fact that Dr. Sudhir Bhave is regularly attending 70-80 psychiatric patients at Nagpur, also looking to the distance between the Court at Pendra Road and Nagpur, where Dr. Sudhir Bhave is practicing, looking to the above facts and inconvenience of Dr. Sudhir Bhave in leaving his headquarter, in the considered opinion of this Court, the Additional Sessions Judge ought to have acceded the request of the accused/ applicants, as the same satisfies the requirement of provisions under Section 284 of the Cr.P.C. Even the accused persons in order to satisfy the requirement of sub-section (2) of Section 284 of the Cr.P.C., are ready to bear all expenses as fixed by the learned Additional Sessions Judge. 11. Therefore, in view of the above, I am of the opinion that the impugned order passed by the trial Court is not in consonance with the provisions of Section 284 of the Cr.P.C. In the circumstances, the learned Additional Sessions Judge ought to have issued commission and requested the Chief Judicial Magistrate, Nagpur, to examine Dr. Sudhir Bhave on commission and to send the evidence of Dr. Sudhir Bhave to his Court. 12. In the result, the criminal revision is allowed and the impugned order is set aside. The learned trial Court shall issue commission after following the procedure as envisaged under the relevant provisions i.e. Section 284 and onwards of the Criminal Procedure Code.