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Calcutta High Court
Hem Coomaree Dassee vs Queen-Empress on 24 March, 1897
Equivalent citations: (1897) ILR 24 Cal 551
Author: G A Gordon
Bench: Ghose, Gordon


Ghose and Gordon, JJ.

1. The petitioner before us, Hem Coomaree Dassee, a purdanashin Hindu lady of rank, residing in the town of Calcutta, was subpoenaed by the Chief Presidency Magistrate of Calcutta to appear in his Court for the purposes of giving evidence in a certain criminal case. Thereupon, she presented a petition to the Magistrate, stating that she had never appeared in any Court or other public place, and asking that a commission might be issued for her examination. The Magistrate, on the 17th February last, rejected her application, upon the ground that, under Section 503 of the Code of Criminal Procedure he had no power to issue such a commission, she being a resident within his jurisdiction. He recorded, however, at the same time that he “shall be prepared to examine the lady in the presence of the accused, either in Court at a time when it shall be cleared for the purpose, or, if thought more convenient, in his private room in the Court house.”

2. Dissatisfied with this order of the Presidency Magistrate, the petitioner applied to this Court for a commission being granted, or for such other order as to this Court might seem meet and proper. And a rule was issued calling upon the Magistrate to shew cause why his order of the 17th February last should not be set aside.

3. Section 503 of the Code is as follows:

Whenever, in the course of an enquiry, a trial, or any other proceeding under this Code, it appears to a Presidency Magistrate, or District Magistrate, a Court of Session, or the High Court, 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, such Magistrate or Court may dispense with such attendance, and may issue a commission to any District Magistrate or Magistrate of the first class, within the local limits of whose jurisdiction such witness resides to take the evidence at such witness, and so on.

4. If the lady had been a resident outside the limits of the town, [535] of Calcutta, there could be no doubt that the Presidency Magistrate would have authority under the section to issue a commission for her examination; but it seems to be doubtful, having regard to the collocation of the words in the last portion of the first paragraph of the section, whether he has such authority when the witness is a resident within his jurisdiction. It will be observed that a commission can be issued only to a District Magistrate “or Magistrate of the first class” within the local limits of whose jurisdiction such witness resides. Section 6 of the Code differentiates “Presidency Magistrates” from “Magistrate of the first class,” arid Section 10 defines who the “District Magistrate” is.

5. Our attention has been called to several cases, but; in none of these cases, except in that of Empress v. Bal Gangadhar Tilak I.L.R. 6 Bom. 285 does the precise question now raised before us seem to have been raised. In some of these cases, the Court to which the application for a commission was made was a Court in the Mofussil, and not in any Presidency town [as, for instance, in the cases of In re Hurro Soondery Chowdhrain I.L.R. 4 Cal. 20, in re Faridunnissa I.L.R. 5 All.,92, In re Basant Bibi I.L.R. 12 All., 69. No doubt the case of Din Tarini Debi I.L.R. 15 Cal. 775 is one which came from the town of Calcutta, but it will be observed from a consideration of the case that the rule that was issued by this Court was simply to show cause, why it should not be ordered that the lady concerned should not be required to appear in Court to give her evidence (as the Presidency Magistrate had ordered), and it does not seem to have been discussed whether the Presidency Magistrate had the power to issue a commission within his jurisdiction, though no doubt in one portion of their judgment the learned Judges said “the question is whether a commission ever issued in regard to purdanashin ladies in his Court (Presidency Magistrate’s Court). Of that he makes no mention. He also says that this lady travels from Govindanga to Calcutta, but he does not say that she does so publicly. So far therefore as cause has been shown by the learned Presidency Magistrate, it does not seem that the facts stated by him affects the reasons upon which such commissions have been granted.” They then [556] gave certain directions as to how the evidence might be taken without compelling the lady to appear in the Court premises, and, as we understand the order of this Court, the learned Judges contemplated that the Magistrate should himself take the evidence, though no doubt in the last paragraph the word “commission” was used.

6. In the case of Queen-Empress v. Barton I.L.R. 16 Cal. 238 an order for the examination of witnesses by commission in the town of Calcutta was issued by this Court to a Presidency Magistrate, and the evidence so taken was admitted in evidence, but there also the question now before us was not raised or discussed.

7. In the case of Empress v. Bal Gangadhar Tilak I.L.R. 6 Bom. 285 the question no doubt was raised, but it will be observed that the Court had then to consider the language of Section 76 of the High Court Criminal Procedure Act of 1875; and it was held that there was nothing in the language of that section to support the contention that the Court was not authorized to grant a commission to examine a witness, who was within its own jurisdiction. The language of that section is some what different from that of Section 503 of the Code, with which we are now concerned; and the question is whether the section authorizes the Presidency Magistrate to issue such a commission within his own jurisdiction.

8. We have considered the provisions of Sections 503 to 507, and the cases that have been cited in the course of argument; and it seems to us doubtful, as already observed, whether a Presidency Magistrate has the power that is now claimed for him by the petitioner.

9. But however that may be, there is nothing to prevent a Presidency Magistrate from examining a witness within his jurisdiction at some other place than the Court house, and it is quite within our province, having regard

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