# Dharmanand Pant v. Statt of Uttar Pradesh

- **Citation:** [1957] 1 S.C.R. 321
- **Court:** Supreme Court of India
- **Decided:** 1954-06-07
- **Case number:** Criminal Appeal No. 50 of 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dharmanand-pant-v-statt-of-uttar-pradesh-1342
- **Pages:** 15

## Headnote

S.C.R.
SUPREME COURT REPORTS
321
to under s. 3 (3) may be disqualified from entertaining
appeals from his own order, but that does not affect
his power. to entertain· appeals from the Excise Commissioner.
Even
that situation
will
not arise,
for
under r. 341 of the Excise Rules appeals arising out of
cases
decided
in the excluded areas by the Commissioner of Hills Division and Appeals would go to the
Governor. Jn any event there does not appear to be
any rc:pugnancy between the Notification and the so
called principle or policy of s. · 9 of the 1910 Act as
regards the· . hearing of appeals from the decisions of
the Excise Commissioner. In our opinion there is no
substance in this point.
No other point of law or fact has been urged before
us. In our opinion for reasons stated above the judgments of the High Court appealed from should be set
aside and those of the appellate authority should be
restored. All the appeals are accordingly allowed. The
controversy, it .seems to us, arose by reason of the inartistic drafting of the relevant enactment and in· the
premises, although the State of Assam has succeeded
in the appeals filed by. it, we make no order ·as to costs
in its favour in any of the appeals filed bv it. The
successful appellants in the other appeals will get the
costs of their respective appeals from the respondents
in those appeals including the State of Assam.
,Appeals allowed.
·DHARMANANDPANT
ti.
STATE OF UTTAR PRADESH
·[JAGANNADHADAS, .JA.FER IMAM, GOY.JNDA MENON and
J. L. KAPUR, JJ.J
.
Criminal ;.ial-Exami~ation of prosecution u•itnesses on commissiorz-Propriety-Procedure-Code of
Criminal Procedure, ss. 503
and 506.
As a general rule in criminal proceedings, the important witnesses on whose testimony
the case against the accused has to be
establi~h:d must be cxami~ed in Court and usually the issuing of
comm1ss1on should be
restricted to formal
witnesses or to such
1957
The Stale of Assam
y •
.4..N. Kidt11ai
Dase.].
1957
1957
Dharmanand Pant
v.
Statt of Uttar
Pradesh
322
SUPREME COURT REPORTS
[1957]
witnesses \vho cannot be produced without unreasonable delay or
inconvenience.
The
evidence
against
the
accused
should be
recorded in his presence and in open Court so that the accused
m3y have an opportunity to effectively cross examine the witnesses and the presiding officer may have the advantage and
opportunity of hearing the witnesses and of noting their derneanour.
Witnesses
should not be examined on commission
except in extreme cases of delay, expense or incpnvenience and
in particular the examination through interrogatories should be
resorted to only in unavoidable cases.
Before the amendment of s. 503, Code of Criminal Procedure,
by s. 97, Code of Criminal Procedure (Amendment) Act, (26 of
1955), no magistrate other than a District :Magistrate or a Presid·
ency Magistrate could issue a commission, and if any subordinate
Magistrate found it necessary to have a witness examined on
cornmission, he had to apply to the District Magistrate ·who
would either issue the commission or reject the application.
Therefore in a case where important witnesses had been
exa1nined on commission through interrogatories, and the orrler
for the examination on commission had been passed by the trying
magistrate and not by the District Magistrate, the Court set aside
the conviction and sentence and ordered a retrial.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 50 of 1955.
Appeal by special leave from the judgment and
order dated June 7, 1954, of the Allahabad High Court
in Criminal Appeal No. 1115 of 1952 arising out of the
judgment and order dated April 14, 1952, of the Court
of the Judicial Officer II and Magistrate 1st Class at
Almora in Criminal Case No. 271/19 of 1950.
S. P. Sinha and P. K. Chatterjee, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
1957. January 39. The Judgment of the Court was
delivered by
GDv1NDA MENON J.-The police charge sheet dated
November 13, 1949, which originated the proceed

## Text

S.C.R.
SUPREME COURT REPORTS
321
to under s. 3 (3) may be disqualified from entertaining
appeals from his own order, but that does not affect
his power. to entertain· appeals from the Excise Commissioner.
Even
that situation
will
not arise,
for
under r. 341 of the Excise Rules appeals arising out of
cases
decided
in the excluded areas by the Commissioner of Hills Division and Appeals would go to the
Governor. Jn any event there does not appear to be
any rc:pugnancy between the Notification and the so
called principle or policy of s. · 9 of the 1910 Act as
regards the· . hearing of appeals from the decisions of
the Excise Commissioner. In our opinion there is no
substance in this point.
No other point of law or fact has been urged before
us. In our opinion for reasons stated above the judgments of the High Court appealed from should be set
aside and those of the appellate authority should be
restored. All the appeals are accordingly allowed. The
controversy, it .seems to us, arose by reason of the inartistic drafting of the relevant enactment and in· the
premises, although the State of Assam has succeeded
in the appeals filed by. it, we make no order ·as to costs
in its favour in any of the appeals filed bv it. The
successful appellants in the other appeals will get the
costs of their respective appeals from the respondents
in those appeals including the State of Assam.
,Appeals allowed.
·DHARMANANDPANT
ti.
STATE OF UTTAR PRADESH
·[JAGANNADHADAS, .JA.FER IMAM, GOY.JNDA MENON and
J. L. KAPUR, JJ.J
.
Criminal ;.ial-Exami~ation of prosecution u•itnesses on commissiorz-Propriety-Procedure-Code of
Criminal Procedure, ss. 503
and 506.
As a general rule in criminal proceedings, the important witnesses on whose testimony
the case against the accused has to be
establi~h:d must be cxami~ed in Court and usually the issuing of
comm1ss1on should be
restricted to formal
witnesses or to such
1957
The Stale of Assam
y •
.4..N. Kidt11ai
Dase.].
1957
1957
Dharmanand Pant
v.
Statt of Uttar
Pradesh
322
SUPREME COURT REPORTS
[1957]
witnesses \vho cannot be produced without unreasonable delay or
inconvenience.
The
evidence
against
the
accused
should be
recorded in his presence and in open Court so that the accused
m3y have an opportunity to effectively cross examine the witnesses and the presiding officer may have the advantage and
opportunity of hearing the witnesses and of noting their derneanour.
Witnesses
should not be examined on commission
except in extreme cases of delay, expense or incpnvenience and
in particular the examination through interrogatories should be
resorted to only in unavoidable cases.
Before the amendment of s. 503, Code of Criminal Procedure,
by s. 97, Code of Criminal Procedure (Amendment) Act, (26 of
1955), no magistrate other than a District :Magistrate or a Presid·
ency Magistrate could issue a commission, and if any subordinate
Magistrate found it necessary to have a witness examined on
cornmission, he had to apply to the District Magistrate ·who
would either issue the commission or reject the application.
Therefore in a case where important witnesses had been
exa1nined on commission through interrogatories, and the orrler
for the examination on commission had been passed by the trying
magistrate and not by the District Magistrate, the Court set aside
the conviction and sentence and ordered a retrial.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 50 of 1955.
Appeal by special leave from the judgment and
order dated June 7, 1954, of the Allahabad High Court
in Criminal Appeal No. 1115 of 1952 arising out of the
judgment and order dated April 14, 1952, of the Court
of the Judicial Officer II and Magistrate 1st Class at
Almora in Criminal Case No. 271/19 of 1950.
S. P. Sinha and P. K. Chatterjee, for the appellant.
G. C. Mathur and C. P. Lal, for the respondent.
1957. January 39. The Judgment of the Court was
delivered by
GDv1NDA MENON J.-The police charge sheet dated
November 13, 1949, which originated the proceedings
out of which this appeal has arisen, was to the effect
that the
appellant,
the
Head
Clerk
of
the Civil
Surgeon's office at Almora, misappropriated a sum of
money entrusted to him during a portion of the period
he
was
functioning
as
Head
Clerk.
Though the
charge-sheet
did
not
specifically
state
the
exact
amount misappropriated, the matter was cleared
up
...
S.C.R.
SUPREME COURT REPORTS
323
when the charge against him under s. 409, Indian
Penal Code, was framed, namely, that between September 26, 1947, and February 11, 1948, he in his
capacity
as
a public servant,
having been
entrusted
with Rs. 1,118-10-9, committed
criminal
breach of
trust in respect of that amount. This is
also evident
from the amounts detailed in column 3 of question 2
that had been put to him by the learned trial Magistrate. The trial court found that on account of the
improper and unsatisfactory state of affairs in which
the accounts were kept in the Civil Surgeon's office,
for which not only the accused but two successive
Civil Surgeons were responsible, no offence has been
brought home to the accused and, therefore, he was
acquitted. The State preferred an appeal to the High
Court of Allahabad which by its judgment dated June
7, 1954, set aside the acquittal, found the accused
guilty of an offence under s. 409 of the Indian Penal
Code, and sentenced him to rigorous imprisonment for
a period of three months. On an application to this
court for special leave under Art. 136 ( 1) ( c) of the
Constitution, the same was granted by the order dated
July 30, 1954, and it is in pursuance to the special
leave so granted that the appeal is before us.
It will be useful and necessary to give a brief
resume of the events which led up to the order of the
High
Court
of
Allahabad,
referred
to above. The
alleged
misappropnat1on
was detected
some
time in
March, 1948,
when
Messrs May & Baker Ltd., sent a
reminder to the Civil Surgeon, Almora, to the effect
that certain bills of theirs were unpaid and outst:mding.
Thereupon the then
Civil
Surgeon, Dr. Kar,
enquired into the matter and found that the appellant,
who was Head Clerk when he took charge, was on
leave. On sending an intimation to the appellant to
submit an explanation,
the latter sent a letter Exhibit
P. 8 on March 5, 1948, containing certain statements
which the prosecution alleges showed that the appellant
was guilty of criminal misappropriation.
Thereafter, according to the prosecution, the money
alleged to have been misappropriated
was
recovered
from the appellant and paid in March, 1948, to the
1957
Dharmanaltd Pal
v.
St1J11 of Uttar
Pradesh
Govinda M1no11J.
1957
Dharmanand Pant
v.
State of Uttar
Pradesh -
Govinda Mtnon J.
324
SUPREME COURT REPORTS
[1957]
. firms whose bills were outstanding but which had
been shown as having been paid in the accounts. The
matter was
put into the hands of the police for
investigation only in June, 1949, when the Deputy
Commissioner of Almora ordered the Deputy Superintendent of Police to look into the matter. After
investigation, a charge-sheet was filed on
November
13,
1949,
and the case was finally submitted by the
S. P. 0. Almora, on July 10, 1950, and was received
in rourt some time later, the exact date of which does
not appear from the records.
A case was registered
in the court of the S. D. M. Almora, on August 7, 1950,
against the accused under s. 409 of
the Indian Penal
Code.
Thereafter, witness were summoned but no
witness seem, to have been examined for some time.
The order-sheet dated November 7, 1950, shows
that
when the file was submitted, the S. P. 0, the accused
and Advocates appeared in court, but as the necessary
papers had to be requisitioned from
the AccountantGeneral's office, the case was adjourned to November
14, 1950, and the S. P. O, was directed to file by that
date a list of documents to be requisitioned. Nothing
seems to have · been done on November 14, 1950, and
the matter was . postponed to November 30, 1950,. and
on that date the District Government ·Counsel, engaged
in · the
case; . stated
that
the ·· documents · in the
Accountant-General's office would · have to be summon-.
ed and examined. · As the Magistrate was of opinion ·
that it was an indefinite thing,. he consigned the fik ·
under · s. 249 of the Criminal Procedure Code, to the
record . room with the· direction that it would be. taken
out when the documents were available. It has not
been explained before us how s. 249 of the Criminal
Procedure Code could be applied to a case like this,
nor is it applicable to cases · falling under the Chapter
dealing in the warrant cases ; but one thing is clear
that after November 30,
1950, the case seems to have
been dropped for a fairly long time. Evidently the
prosecution was not ready . and might · not probably
have been serious. Thereafter on June 4, 1951, the
· · District Government Counsel applied . to the· S. o, M.
for summoning some witnesses for examination on
S.C.R.
SUPREME COURT REPORTS
325
June 15,
1951, and the same was
ordered.
The
proceedings
were then
transferred
to
the Judicial
Officer,
Almora,
who
began
the
examination of
witnesses on June 16, 1951. He examined P. W. I
(Shib Lal Tewari) on June 16, 1951, P. W. 2 (Bishun
Singh) on August 21, 1951, P. W. 3 (Mohan Singh) on
the same date, P. W. 4 (Shiv Lal Sah) and P. W. 5
(D. N. Pandey) on October 25,
1951, and Hira Lal
(P. W. 6) on November 10, 1951. In the meantime
on September 1, 1951, the District Government counsel
:applied to the court for examining three witnesses on
behalf of the prosecution, namely Dr. D. M. Kar, Sri
R. P. Kapoor and D. N. Pandey and the Magistrate
directed summonses to issue to them on the same
date.
It is seen from the records that on September
7, 1951, the Magistrate received a letter from the Civil
Surgeon at Allahabad, that the Magistrate's certificate
is necessary under s. 507(2) of the Criminal Procedure
Ccxle and s. 33 of the Evidence Act to the effect that
it is necessary that the personal attendance of .the
medical
officer
is desirable
and
that
a commission
should not issue for examination for those witnesses.
The letter further stated that if a commission could
be arranged, the ·same may be arranged to record the
evidence of D. M. Kar at Allahabad. Neither · the
counsel for the appellant here, nor Mr. Mathur for the
· State of Uttar Pradesh, has been able to explain to us
-as to how the sections · referred to in the letter · of the
Civil Surgeon are in any . way applicable. We find
·-another letter from the · Accountant-General of Uttar
Pradesh . dated September 14, 1951, which was in reply ·
to a letter dated September· .3. 1951, to the effect that
R. P. Kapoor, ·. the senior auditor of the AccountantGeneral's office, had been directed to attend coun on
September 19, 1951, but he was not authorised to give
evidence from the unpublished records of the Accountant-General's office for which privilege was claimed
under s. 123 · of the Evidence Act. On October 16,
1951, the appellant put in
an application to the
Magistrate stating that the case had been going on
since March, 1948, and on account of the long drawnout proceedings he was greatly . harassed and requested
1957
Dliarmanand Pal
v.
Slal1 of Uuar
Pradesh
Govilllla Minon J,
1957
DAarmartand Pant
v.
State of Uttar
Pradesh
Gouinda Minon ].
326
SUPREME COURT REPORTS
[1957]
that the matter may be decided
quickly. In this
state of circumstances, the District Government counsel put in an application on October 26, 1951, stating
that permission may be given to examine three witnesses oh commission.
Nevertheless, it
also stated
that the case had been pending for a long time. The
petition further referred to the fact that the presence
of Dr. D. M. Kar and R. P. Kapoor in court was
necessary. The Magistrate on the same date passed
an order that commission be issued to examine these
witnesse5. On October
29, 1951, the prosecution submitted
interrogatories
for
the
examination
of
Dr.
B. R. Jain and Srimati Malti Devi Joshi. On November 14, 1951, the prosecution submitted the interrogat<>-
ries for the examination of Sri. G. R. K. Tandan, Sri
Lakshmi Shankar, Sri Biswahath and M. N. Dube.
With regard to Dr. D. M.
Kar, the interrogatories
were filed
in court on
November 10,
1951. On
November 12, 1951, the accused put in an application
objecting to questions Nos. 5, 6 and 9 to be put to
Dr. D. M. Kar, on the ground that they are leading
questions which cannot be put in examination-in-chief
and stating further that the appearance of Dr. D. M.
Kar and Sri Kapoor for recording their evidence in
person before the court is necessary and their crossexamination in court be arranged for the purpose. If
that was not possible, the cross-interrogatories attached to
the petition may
be sent
along with the
interrogatories.
The
learned
Magistrate
on
that
application made an order that the questions should
be modified in a different language than what they
have been put.
The cross-interrogatories
to
these
witnesses were filed on subsequent dates the details of
which it is unnecessary to mention. We find from the
record an application by the prosecution with an order
thereon dated November 14, 1951, to the effect that in
addition to the important witne<Ses for whose examination on commission an application had been made,
four more witnesses should be examined in person.
The reason given by the prosecution was that the
accused was anxious for an early judgment and hence
the request for examining the witnesses. The prosecution
S.CR.
SUPREME COURT REPORTS
327
reiterated that the four witnesses mentioned therein
may
be
summoned and
examined
in person. On
this the Magistrate passed th~ following order :-
"On the last date of hearing it was settled that
all the remaining P.Ws. would be examined on .commission, and
on that understanding the questions for
Sri Kapoor were also
supplied
today.
But if the
prosecutiofl
wants that Sri Kapoor's evidence is so
very necessary, I give only one opportunity to call
him
to
court
for
one
occasion. He should be
telegraphically informed to be
present on 30-11-1951,
and if he cannot be available for any reason, then the
interrogatories prepared by him be sent at once. This
case is hanging on, since a very long time. Only
Sri R. P. Kapoor can be called on the next day of
hearing. For
all the witnesses commission may be
issued as they are being far away from Almora."
The result of these proceedings was that, among
others,
the important witnesses such as the two Civil
Surgeons during whose period the alleged misappropriation took place, as well as the auditor, were examined
on commission by
interrogatories, even though the
prosecution-as also the accused were anxious that at
least the most important of them should be examined
in court. The cross-interrogatories submitted by the
accused deal with the points raised in the questions put
in
examination-in-chief.
The
interrogatories
were
answered by the witnesses before the officer to whom
the commission was issued and it is as the result of the
evidence so taken that the accused has been convicted.
As stated in the judgment of the High Court the
defence of
the accused
was that the undisbursed
amounts were kept in the safe in the office and wer'e
disbursed on later occasions though the cash books
showed that the disbursements were earlier. In short,
!he case comes to this, that even though in the cash
books there have
been entries of disbursements on
particular dates, the actual disbursements took place
later and during the intervening period the money
remained in the safe itself without
the appellant
having had any dominion or possession over the same.
If that is so, no question of criminal misappropriation
7-100 S.C.India./59
1957
Dharmanand Pant
v.
Stat1 of Uttar
Pradesh
Govinda Menon J.
1957
Dharmanand Pant
v.
Slate of Uttar
Pradesh
Govinda Menon ].
328
SUPREME COURT REPORTS
[1957J
would arise. The learned Judges of the High Court
comidered this defence as unacceptable and in view of
the admissions contained in Ex. P. 8, they came to the
conclusion
that
there
has
been
a temporary misappropriation of the amounts. In the view which we
take in consequence of the arguments advanced before
this court and the facts above noticed from the reco.rd,
it has become unnecessary and in fact inexpedient to
express any opinion regarding the truth or otherwi,,e
on either the prosecution version or the defence ca>e.
At the stage at which the important witnesses for the
prosecution were directed to be examined by interrogatories on commission, it was evident that the plea of
the acclised could not have been before the court and
no assumption can be made as to how the case was
going to get shaped later on.
The question is whether in a prosecution like this
where the Head Clerk of a Civil Surgeon's office is
being arraigned for criminal breach of trust of sums
during a particular period, and especially where the
misappropriation, if any, could have been found out
much earlier if the superior officers
had been prompt
in checking · the registers and doing the duties assigned
to them under the rules and regulations governing the
office, it can be said that the trial is in strict consonance
with established rules . of practice . and not in" violation
of the same, ·.where the .. important ·witnesses' testimony
has been obtained outside the court, · which has to deal
with and determine the case.
It is an established and cardinal principle of Criminal
jurisprudence· obtainable. i.n. all ·systems. •of. bw that.· in
criminal proceedings the evidence against the accused·
should be recorded. in his presence and in open court
so that the accused may be enabled to challenge such
parts of the statement which he wishes to challenge
and the presiding officer may have the advantage and
opportunity of hearing the . witness in person, noting
his demeanour and finding out for himself on such
observation whether what the witness
deposes
is true
or otherwise.. There is also the further a<lvantage so far
as the accused is concerned of testing the truth or otherwise of the deponent's testimony by
cross-examination
.S.C.R.
SUPREME COURT REPORTS
329
in a public place like a court and which may develop
from point to point effectively with reference to the
answers that a witness gives. But where on account
of particular ,reasons it is not possible to get the
presence of the witness in court, the Criminal Procedure Code provi<les for. examination on commission
which can
be
direct examination
by
counsel for
the prosecution. and cross-examination by the accused
or his counsel. Section 503, as it stood before the
.amendment of 1955, provided that where in the course
of an inquiry, trial or other proceeding under the Code,
it appears to a High Court, court of Sessions, District
Magistrate or Presidency Magistrate, 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 court or Magistrate
may
dispense
with such attendance and
issue
a
commission for
the examination of the witness in
accordance
with the
provisions of
·that Chapter.
Sub-section (2)
provided that if in the course of an
inquiry,. trial or other proc:eeding under the Code before
any Magistrate; other than · a District Magistrate or
Presidency Magistrate, it appears· · that a commission
·ought to be issued for the examination cif a witness
whose evidence is necessary· for the ends of justice
· and that the attendance of such witness cannot be
pr~duq:d without · an amount of . delay, expense or
. inconvenience which, under the· circumstances of the
case, would be unreasonable, such Magistrate shall
apply to the District · M~gistrate stating the reasons for
the application ; and the District Magistrate may either
issue a commission or · reject the application. One of
the methods provided for the examination of witnesses
on commission is contained in s. 506, of the Criminal
Procedure Code, which is as follows:
(1) The parties to any proceeding under this Code
in which a commission is issued may respectively forward any interrogatories in writing which the court or
Magistrate directing the commission may think relevant to the issue, and
it
shall
be
lawful
for the
1957
Dharmanand Paat
v.
State of Uttar
Prad<Jh
Govinda Menon J.
1957
Dharmanand Pant
v.
State of Uttar
PradtJh
l Govinda Menon J.
330
SUPREME COURT REPORTS
[1957}
Magistrate, Court, or officer to whom the commission
is directed, or to
whom the duty of executing it is.
delegated, to examine the witness
upon ·such interrogatories ;
(2) Any such party may
appear
before
such
Magistrate, court or officer by pleader, or if not in
custody, in person,
and
may examine, cross-examine
and re-examine (as the case may be) the said witness.
·By the Code of Criminal Procedure (Amendment)
Act, XXVI of 1955, in s. 97, for
the words 'District
Magistrate or the Presidency Magistrate' in sub-s. (I)
of s. 503 the words 'any Magistrate' were substituted
and sub-s. (2) was omitted but a proviso was added to
sub-s. (I) which in the circumstances of this case is unnecessary to refer to. The result of the amendment is
that before the enactment of s. 97 of Act XXVI of
1955 no Magistrate other than a District Magistrate or
a Presidency Magistrate could issue a commission and
if any such subordinate Magistrate finds it expedient,
necessary or essential to have a witness examined on
commission, he has to apply to the District Magistrate
who will either issue the commission himself or reject
the application. The
District Magistrate in issuing the
commission, or rejecting the request is acting judicially
and his orders are subject to supervision and control
by the appellate or revisional court.
On the ,assumption that the commission was regularly set up by an order of the District Magistrate as
contemplated by the above provisions, the question is
as to whether there was sufficient justification for
deviating from the normal practice of examining witnesses in court. We have not been shown that the
attendance of the two Civil Surgeons, as well as the
auditor and the other witness, could not have been
procured without an amount of delay, expense or inconvenience which, under the circumstances of the
case, could be unreasonable, and nobody has suggested
that the two officers who had held the post of Civil
Surgeon of
Almora, lived at any other place than in
Uttar Pradesh, and there is not even a suggestion of
gross inconvenience or delay and expense unreasonable
in the circumstances which would justify their being
S.C.R.
SUPREME COURT REPORTS
331
kept out of court. If the Magistrate had issued summonses to these witnesses and found that it was diffi-
·cult to procure their attendance in the normal course
of things, then he could have adopted the procedure of
waiving the attendance in c-ourt. Some attempt should
have been made to find out whether the normal
practice would not have been followed and it is only
after the impossibility of such a process is
ascertained
that a commission should have been issued. The mere
fact that the proceedings have got protracted for an
·extraordinary length of time for reasons which do not
appear dearly on the record, but giving room for the
impression that the higher officers concerned were not
prepared to take the matter seriously in view of the
amount having been made up-can by itself be no
ground for issuing a commission ; that is, at best only
·delay in the disposal of the case, and not delay in
obtaining the evidence of the witness in court. There
appears no possible
justification on the record for the
issue of the commission and much more so for the
'issue of mere interrogatories.
The issuing of a commission under the Code of Civil
Procedure is governed by ss. 75-78 and 0. XXVI, r. 1
of which lays down the cases in which a court may
issue
a commission to examine a witness. Ordinarily
when a person resides within the local limits of the
jurisdiction of the court and is not exempted under
the Code from attending court or who is on account of
sickness or infirmity, unable to attend the court, he
should be examined in court. Under the Civil Procedure Code ss. 75-78 and 0. XXVI, r. 4, a witness mav
be examined on commission if he is a resident beyond
the local limits of its jurisdiction, or a person who is
about to leave such limits before the date on which he
is to be examined in court, or any person in the service
of the Government who cannot in the opinion of the
court attend without detriment to his
public duties.
No such limitations have been imposed for the examination of witnesses on commission under the Code of
Criminal Procedure. But that by itself should make
the presiding officer observe greater care and caution
in issuing a commission to examine a witness, for, as
1957
Dharmanand Panl
v.
Stall of Uttsr
Pradesh
Govinda Menon ].
1957
Dharmanand Pant
v.
Stall of Uttar
Pradesh
Govinda Menon ].
332
SUPREME COURT REPORTS
[19571
already stated, it is the inherent right under ordinary
circumstances of every accused person ·to have the
evidence· against him recorded in open court and in
his presence and where any departure from that mode
is necessary, the same should be limited . to exceptional
cases and the Criminal Procedure Code provides how
and where such discretion ought to be exercised.
.
As early as i.n the case Queen-Empress v. T. Burke('),
it has be.en held that it is not proper to allow the evid- .
ence of aii important witness for the. prosecution· to be
·.taken· on commission on .· the ground . that it would. be
inconvenient for the witness
to attend court. That ss.
503 and 506 of the Criminal Procedure Code should be
used sparingly and only in the clearest possible cases,
has been laid down in Mohammad Shafi v. Emperor(').
It is· not necessary to refer to case law on the point
because the matter is one to be decided on the facts in
each case. As a general rule it may be said that the
important witnesses on whose testimony the case against
the accused person has to be established, must be
examined in court and usually the issuing of a commission should be restricted to formal witnesses or such
witnesses
who could
not ·be produced without an
amount of delay or inconvenience unreasonable in thecircumstances of the case. The idea of examining witnesses on commission is primarily intended for getting
the evidence of witnesses other than parties principally
interested such as a complainant or any person whose
testimony is absolutely essential to · prove the prosecution
case.
In short,· witnesses m a criminal case
should not be examined on comm1ss10n except in
extreme cases of delay, expense or inconvenience and
in particular the procedure by way of interrogatories
should be resorted in unavoidable situations. The discretion to be used by the Magistrate · is a judicial .one
and should not be lightly or arbitrarily exercised.
·
In these circumstances, we have .to note that the
evidence of the two Civil Surgeons and that of the
auditor would be the foundation for the case against
the appellant and that being the case, it seems to us
that they ought to have been examined in court. As
(IJ I. L. R, (1884) 6 All. 024.
(2) A.I.R. 1932 Patna 242.
S.C.R.
SUPREME COURT REPORTS
333
we are of the view that the Magistrate has acted · improperly in having the essential witnesses examined o;i
commission, we feel that the accused has not had a fair
trial.
From. the review of the proceedings outlined above,
it also does not appear that · · the trying Magistrate .
approached the . District Magistrate with an application
as contemplated in . s. 503 (2), Criminal Procedure Code.
In response to the request of. . the District ·. standing
counsel; . the Magistrate himself directed drat the commission · should be issued as desired, on October 26,
· 1951. . Further by the order dated November 12, 1951,
the alleged · leading questions ··were ordered. to be modified and presented in a style and diction which would
cure the defect of the leading nature of the questions.
The order dated November 14, 1951, does not also show
that there was any attempt made to approach . the
District Magistrate, for we find in the order-sheet the
remarks . of the Magistrate, mentioned above at an
earlier stage.
We have ourselves examined the original records
called for from the lower courts and the result of our
scrutiny comes to this. In continuation of the order
made by the trying Magistrate dated October 26, 1951.
that commissions will be issued as desired, on November 19, 1951, he has himself issued a commission to
examine the witnesses as required under ss. 503 and
506, Criminal Procedure Code. The
summons has
emanated from the Judicial Officer II, Magistrate 1st
Class, Almora, addressed to the · District Magistrate,
Lucknow, stating 'It was necessary for the purpose of
the trial to examine .the person·. named in the margin as
a witness on behalf of the prosecution and, the District.
Magistrate, Lucknow, is appointed Commissioner with
authority under the provisions of ss. 503 and 506 of
·the Criminal Procedure . Code to . examine and crossexamine the · said witness upon . interrogatories, etc.' .
The summons has
been submitted to the District
Magistrate, Almora, for favour of forwarding the commission to the District Magistrate, Lucknow, for execution. Similarly the ·summonses to examine other witnesses on commission on the same date have also been
1957
Dharmanand Pant
v.
Statt ef Uttar
Pradesh
Govinda Menon J.
1957
Dharmanand Pant
"·
Slate of Uttar
Pradtsh
Govinda Menon J.
334
SUPREME COURT REPORTS
[1957]
issued
and all of them have been despatched to the
District Magistrate, Lucknow, for the purpose of complying with the commission. It is nowhere seen that
the District Magistrate of Almora has exercised his
independent judgment or judicial discretion as contemplated
in the last clause of sub-s. (2) to s. 503, Criminal
Procedure Code, as to whether any such
commission
should issue or not. What the Code contemplates is
that the District Magistrate to whom the trying Magistrate submits a request for issuing a commission, should
himself issue the commission or reject the application.
It also says that the applying Magistrate should state
the reasons for the application. We do not find from
the record anything to show that the District Magistrate, Almora, who under the Code ought to be the
authority issuing the commission, has complied
with
the imperative provisions of the Code. All that can be
gleaned from the record is that the District Magistrate,
Alrnora, has simply acted as a forwarding authority for
sending the commission issued by the trying Magistrate.
In the present case, as
stated already the District
Magistrate, Almora, had the power either to accept the
request of the trying Magistrate and issue the commission, or reject the same, and an order made either way
should be a judicial one after considering the matter in
its entirety. No such thing seems to have been done.
Such being the case, we are constrained to observe that
an elementary rule of practice essential for
justifying
the examination of witnesses on interrogatories has not
been conformed to. The point is of vital importance
for the reason that if the essential pre-requisite for the
validity of the issuing of a commission has not been
complied with, the evidence so taken would be improper and could not be used against the accused. This
is a defect which goes to the root of the matter and is
vital
in content.
Thus the entire proceedings
are
vitiated and the evidence of the witnesses taken on
commission will have to be completely eschewed from
the record.
We, therefore, allow the appeal and remit the case
for retrial, according to law, to the court of first instance
in the light of observations made above. It will not be
S.C.R.
SUPREME COURT REPORTS
335
necessary to re-examine the witnesses who have already
been examined m court unless the court thinks it
necessary.
Appeal allowed. Case remanded for retrial.
NIEMLA TEXTILE FINISHING MILLS LTD.
v.
THE 2No PUNJAB INDUSTRIAL TRIBUNAL
(with connected appeals and petitions)
rs. R. DAS C.J., BHAGWATI,
VENKATARAMA
AYYAR,
B. P. SINHA and S. K. DAs JJ.]
Industrial
Disputes
Act,
1947 (XIV of 1947)-Constitutional
1'alidity-Legislative competency-Powers of
Industrial
TribunalsWhether Legislative-The Government of India Act, 1935 (25 & 26
Geo. 5, Ch. 42), Sch. VII, List III, Entt·ies 27, 29-Constitution of
India, Arts. 14, 19 (1) (f) and (g).
The
disputes
between
the
appellants
and their
workmen
were referred to the Industrial
Tribunal for adjudication by
the
appropriate Government, under the provisions of the Industrial
Disputes
Act, 1947.
It
was
contended
for the
appellants that
the reference to the Tribunal was bad because
( l) the Act was
ultm
vires. the
Constitution
inasmuch
as
its
provisions
are
Yiobtive of the fundamental rights enshrined in Art. 14 and Art.
19 (I) ( f) and ( g) of the Constitution, (2) the Industrial Tribunals
are legislating in the guise of adjudication, and this amounts to
delegation of the powers of legislation which it was not competent
to the Central Legislature to do so, and ( 3) the definition of the
term "industry" comprises industrial
as
well
as
non-industrial
concerns and, therefore,
the Act was
not within the legislative
competence
of the
Central Legislature under Entry 29 of List Ill
of the Seventh Schedule to the
Government of India Act, 1935.
Held: (1)
The
Industrial
Disputes
Act,
1947,
1s
not
unconstitutional
and the provisions
of the Act
do not contravene
Arts. 14 and 19 (l) (£) and (g) of the Constitution.
The basic idea underlying all the provisions of the Act is the
'settlement of industrial
disputes
and the promotion
of industrial
peace
so
that
production
may
not, be
interrupted and
the
<:ommunity
in general
may
be benefited,
and
the
appropriate
Government has, therefore, a discretion
in the matter of making
the reference to one or other of the authorities under the Act and
also in the matter of carrying out the various provisions of the
Act,
including _ the curtailment or extension of the
period ot
1957
Dharmanand Pant
v.
State of Uttar
Pradesh
Govinda Almon J.
1957
January 10