Commission for Examination of Witnesses under the Civil Procedure Code (CPC)

The Commission for Examination of Witnesses is a mechanism provided under the Civil Procedure Code (CPC), 1908 that allows the court to appoint a commissioner to record the evidence of a witness who cannot be examined in the ordinary manner. The provision aims to facilitate the administration of justice in cases where the examination of witnesses cannot occur due to various reasons such as illness, absence from the jurisdiction, or other valid grounds.

The appointment of a commission for the examination of witnesses ensures that the testimony of such witnesses is preserved for trial, preventing the loss of important evidence.

Relevant Provisions of CPC:

1. Section 27 – Power to Issue a Commission
   • Section 27 of the CPC empowers the court to issue a commission for the examination of witnesses. It allows the court to appoint a commissioner if it is not feasible for the witness to appear in court, and the court finds that their evidence is important for the case.
   • The court must be satisfied that a valid reason exists, such as the witness’s absence from the jurisdiction or their inability to attend due to physical disability or other legitimate concerns.
2. Order 26, Rule 1 – Appointment of Commission
   • Order 26, Rule 1 of the CPC deals with the appointment of commissions for various purposes, including the examination of witnesses. It states that the court may, at its discretion, appoint a commissioner to examine witnesses, especially if it is impractical for them to appear personally in court.
   • The application for such a commission can be made by either party in the case, or the court may take the initiative if it deems it necessary.
   Order 26, Rule 1 states: “Where the court is of the opinion that the examination of a witness is required to be taken out of the jurisdiction of the court, it may issue a commission for that purpose.”
3. Order 26, Rule 4 – Power of the Commissioner
   • The commissioner appointed under the CPC has the authority to examine the witness and take their testimony under oath in the same manner as would be done in a courtroom. The commissioner must follow the prescribed procedure for recording evidence.
   • The commissioner is also required to submit a report to the court, which includes the testimony of the witness, along with any documents that were presented during the examination.
4. Order 26, Rule 10 – Examination of Witnesses in the Absence of Parties
   • The rule allows for the examination of witnesses in the absence of the parties to the case, particularly in situations where it would be impractical for them to be present. In such cases, the commissioner can conduct the examination and send the testimony to the court for consideration.

Procedure for the Appointment of a Commission for Examination of Witnesses

1. Application for Commission:
   • The party desiring the examination of a witness through a commission must file an application before the court. The application should include the reason for the witness’s inability to attend court (e.g., absence from jurisdiction, illness, or other valid reasons).
2. Court’s Discretion:
   • The court, after hearing the application, will decide whether the examination of the witness via commission is necessary. The court may appoint a commissioner if it is convinced that the witness cannot attend in person, and their testimony is crucial to the case.
3. Appointment of Commissioner:
   • If the court allows the request, a commissioner is appointed. The court may also specify the location where the examination will take place (for example, the place where the witness resides or any other suitable location).
4. Examination Process:
   • The commissioner will proceed to the place where the witness is located and record their testimony. The examination will be conducted in the same manner as it would be done in the courtroom. The parties to the suit may be allowed to attend the examination, depending on the circumstances.
5. Report of the Commissioner:
   • After the examination, the commissioner submits the recorded testimony and other relevant documents to the court. The report is then considered by the court for further proceedings.
6. Use of Commissioned Evidence in Trial:
   • The evidence recorded by the commissioner is treated as evidence in the case, and the court may rely on it in its judgment. The opposing party may cross-examine the witness, either by attending the examination or through other means, if permitted.

Key Points to Remember:

• Commission’s Role: The commissioner appointed under the CPC acts as an agent of the court. They do not have the power to make decisions but rather to record evidence in a manner prescribed by the court.
• Witness’s Absence: The main reason for issuing a commission is the inability of a witness to attend the court due to factors like distance, illness, or any other valid reason. The witness’s testimony is recorded by the commissioner in such cases.
• Admissibility of Evidence: The testimony taken by the commissioner is treated as if it were taken in the court, making it an important part of the record for the case.
• Practical Use: This provision ensures that crucial evidence is not lost simply because a witness cannot attend court, preserving the fairness of the trial.

Conclusion

The Commission for Examination of Witnesses under the Civil Procedure Code (CPC) provides an important tool for ensuring the proper administration of justice in cases where witnesses cannot attend court. By allowing the examination of witnesses in absentia through the appointment of a commissioner, the CPC ensures that all relevant evidence is preserved for consideration by the court, even when it is practically impossible for the witness to appear in person. This provision is a valuable mechanism to promote fairness and thoroughness in legal proceedings.