Code of Civil Procedure, 1908 | Order XXVI

Order XXVI Rule 17 CPC - Witness Attendance and Examination Before Commissioner

Order XXVI Rule 17 of the Code of Civil Procedure, 1908 (CPC) regulates the attendance and examination of witnesses before a court-appointed Commissioner. It extends the CPC provisions governing witness summons, production of documents, remuneration and penalties to proceedings conducted under a commission, while reserving the power to impose penalties to the appropriate court where the Commissioner is not a Civil Court Judge.

Order XXVI Rule 17 CPC - Statutory provision

17. Attendance and examination of witnesses before Commissioner

(1) The provisions of this Code relating to the summoning, attendance and examination of witnesses, and to the remuneration of, and penalties to be imposed upon, witnesses, shall apply to persons required to give evidence or to produce documents under this Order whether the commission in execution of which they are so required has been issued by a Court situate within or by a Court situate beyond the limits of India, and for the purposes of this rule the Commissioner shall be deemed to be a Civil Court:

Provided that when the Commissioner is not a Judge of a Civil Court, he shall not be competent to impose penalties; but such penalties may be imposed on the application of such Commissioner by the Court by which the commission was issued.

(2) A Commissioner may apply to any Court (not being a High Court) within the local limits of whose jurisdiction a witness resides for the issue of any process which he may find it necessary to issue to or against such witness, and such Court may, in its discretion, issue such process as it considers reasonable and proper.

Official source: Code of Civil Procedure, 1908 - India Code (PDF). The provision should be read subject to applicable local amendments and court rules.

Meaning and scope of Rule 17

A commission is an authority issued by a court for a specified judicial task, such as recording evidence. A Commissioner is the person appointed to carry out that task. Rule 17 ensures that the machinery of the CPC for compelling attendance and production of documents is available when witnesses are examined through a commission rather than directly in open court.

Rule 17(1): Summons, examination and penalties

The CPC provisions concerning summoning and examining witnesses, witness expenses or remuneration, and consequences of non-compliance apply to persons called to testify or produce documents before the Commissioner. For the limited purposes of this rule, the Commissioner is deemed a Civil Court. This applies even where the issuing court is situated outside India, as the provision expressly states.

Important limitation: A Commissioner who is not a Judge of a Civil Court cannot personally impose penalties. The court that issued the commission may impose an appropriate penalty upon the Commissioner's application, subject to the applicable legal requirements.

Rule 17(2): Assistance from the local court

Where a witness resides within another court's territorial jurisdiction, the Commissioner may request that court, other than a High Court, to issue necessary process to or against the witness. The requested court has discretion to issue such process as it considers reasonable and proper. The Commissioner does not thereby obtain unrestricted power to compel a witness or punish disobedience independently of the CPC.

Order XXVI Rule 16: describes a Commissioner's powers to examine persons, call for relevant documents and inspect specified premises, unless restricted by the appointment order.
Order XXVI Rule 16A: regulates objections to questions before a Commissioner, including privilege objections and the court's control over use of the recorded answer.
Order XXVI Rule 18: deals with the appearance of parties before the Commissioner and permits proceedings in their absence in specified circumstances.
Order XVI: contains general procedural rules relating to summoning and attendance of witnesses.

Practical application

If a witness fails to attend or produce requested documents, the Commissioner should document the default and use the procedural route provided by Rule 17. Where coercive process or a penalty is needed, the competent court must exercise the authority assigned to it by law. Parties should also consult the court's commission order, the applicable High Court rules and any state amendments.

Frequently asked questions

Can a Commissioner impose a fine on a witness?

Not if the Commissioner is not a Judge of a Civil Court. In that situation, the issuing court may consider penalties on the Commissioner's application.

Can a Commissioner seek a summons through another court?

Yes. Rule 17(2) permits an application to the competent local court, other than a High Court, which decides whether the requested process is reasonable and proper.

Does Rule 17 apply to production of documents?

Yes. It expressly covers persons required to give evidence or produce documents under Order XXVI.

This article explains the central CPC provision for general information. Local amendments, court rules and the terms of a particular commission may affect the procedure.