A key witness who can support my defence lives abroad and cannot travel to India. Can I request the criminal court to issue a commission for examination of a witness residing in a foreign country and how is such evidence recorded and brought before the Indian court in Kolkata?
If an important witness in your Kolkata criminal case is based abroad and cannot travel to India, you're not without options, since Indian law specifically provides for examining such witnesses through a commission rather than requiring their physical presence in court. Under Section 285 to 290 CrPC (now the corresponding BNSS provisions), a criminal court has the power to issue a commission for the examination of a witness who is unable to attend court, and this specifically extends to witnesses residing outside India when the court is satisfied that their evidence is necessary for the just decision of the case.
The process involves the party seeking the commission, whether prosecution or defence, filing an application before the trial court in Kolkata explaining why the witness cannot be produced in person and why their testimony is essential. If the court is satisfied, it issues a commission, which is essentially a formal authorisation for the witness's examination to take place before a designated commissioner, often through the Indian consulate or embassy in the country where the witness resides, or increasingly through video conferencing, which Indian courts have increasingly accepted as a valid mode of recording evidence, particularly following the Supreme Court's guidelines on virtual testimony.
Both prosecution and defence have the right to cross-examine the witness during this commissioned examination, ensuring the process doesn't compromise the accused's right to test the evidence against them. The recorded testimony, once received by the trial court, is treated as evidence in the case exactly as if the witness had appeared in person, subject to the usual rules regarding admissibility and weight.
Because arranging a witness commission involves coordination between the court, sometimes foreign authorities, and technical logistics like video conferencing arrangements, it is important to have this process managed by someone experienced in handling such applications. Aapka Legal Advice can help draft and pursue your commission application efficiently, minimising delays in your trial.
If you have a crucial witness abroad who cannot travel for your Kolkata case, this is a solvable problem under the law. Speak with experienced criminal lawyers in Kolkata about applying for a commission to formally record that witness's testimony.