What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the Court and to do everything that the Court requires to deliver full and complete justice. Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is appointed who conducts the local investigation. Similarly, to record the evidence of a witness who cannot come to the Court for evidence, the Court can issue a commission for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner. Section 75, provides that "the Court" can issue commission provided the limitations and restrictions applicable. Therefore, the Court who has to decide the suit can appoint the commissioner. Commissioner is appointed to carry out the functions for which the commission is issued. Court has the discretionary power to appoint the commissioner and such power can be exercised on the application of any of the parties or the Court can issue the commission suo moto.
We will understand the procedure followed by the Courts to appoint the commissioner later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which advocates are selected who are competent to carry out the commission issued by the Court.
The person appointed as commissioner should be independent, impartial, disinterested in the suit and the parties involved in it. Such a person should have the requisite skills to carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if a person who cannot read and understand the accounts and documents is appointed as commissioner to adjust accounts. Similarly, a person who does not have the qualifications to conduct scientific investigation should not be appointed as a commissioner for such task.

The District judge supervises the subordinate Courts who have to take special care while appointing a commissioner(1). The same person should not be appointed by the Court in all commissions and a person who hangs about the Court should not be appointed.

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and regulations which is to be followed by the subordinate Courts. Procedure for appointment of a commissioner is provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for appointment of Commissioner. The following procedure is followed by the Delhi High Court(2):
A panel of not more than 4 commissioners is to be formed which consists of young persons including a lady lawyer, appointed by the Court for recording of evidence.
The District Court notifies the bar about the number of vacancies of commissioners and the bar forward the applications received for the same to the Court who then forwards it to the High Court with their recommendation.

The term of such appointment is generally 3 years which can be extended by an order of the High Court but no commissioner can be appointed after 6 years of such appointment.

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by the Court. According to Section 75 of CPC, the Court has the power to issue a commission to carry out the following functions:
To examine witnesses: Order 26 Rule 1-8
The general rule of evidence is to bring the evidence before the Court and must be recorded in open Court. But in extraordinary circumstances, the appearance of witness is dispensed and the witness is allowed to depose evidence without appearing in Court.

Appearance is exempted if:

A witness is bedridden or is unable to attend the Court due to sickness or infirmity, in such circumstances the Court can exempt the appearance of witness and allow the witness to depose evidence to a commissioner appointed for the same. Such a witness will have to submit a certificate signed by a registered medical practitioner as evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the Court will exercise its powers provided under order 18 rule 4 and appoint a commissioner for examination on interrogatories (3).

A witness apprehends danger to his life and informs the Court about such danger and if the Court thinks that recording evidence of the witness is necessary, the Court may issue commission to record evidence of such witness. Where a party accused of fraud seeks himself to be examined with commission, the Court must not issue commission and avoid person of such demeanor to abuse the procedure.

The witness is a pardanashin lady whose attendance is exempted under Section 132 of the code.

The witness is a Civil or Military Officer of the Government, cannot attend without detriment to the Public Service. (Order XXVI Rule 4)

If the Court thinks that it is in the interest of justice or expeditious disposal of the case or for any other reason, the Court can issue a commission notwithstanding any of the rules provided in the order. (order 26 rule 4A)

A person who cannot be ordered to attend the Court in person under Order 16 rule 19 can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)

A commission can be issued for examination of a person detained in prison. (order 16A rule 7)