Dharmanand Pant vs State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 January, 1957

Coram: Govinda Menon

In this case, the Court noted that the charge sheet prepared by the police on 13 November 1949 initiated the proceedings that are now before the Supreme Court. The charge sheet alleged that the appellant, who was the Head Clerk of the Civil Surgeon’s office in Almora, had misappropriated money that had been entrusted to him while he was performing the duties of Head Clerk. The charge sheet did not specify the exact amount that was allegedly misappropriated. However, the charge against the appellant under section 409 of the Indian Penal Code clarified that, between 26 September 1947 and 11 February 1948, while serving as a public servant and having been entrusted with the sum of Rs 1,118‑10‑9, he had committed criminal breach of trust with respect to that amount. This allegation is also reflected in the figures recorded in column 3 of question 2, which were presented to the appellant by the trial magistrate. The trial court observed that the accounts of the Civil Surgeon’s office were kept in an improper and unsatisfactory manner, a condition for which responsibility rested not only on the appellant but also on two successive Civil Surgeons. Because of these deficiencies, the trial court concluded that no offence could be firmly established against the appellant and consequently acquitted him. The State appealed this acquittal to the High Court of Allahabad. By its judgment dated 7 June 1954, the High Court set aside the trial court’s acquittal, found the appellant guilty of an offence under section 409 of the Indian Penal Code, and sentenced him to three months of rigorous imprisonment.

The appellant then applied for special leave to appeal to this Court under clause c of Article 136 of the Constitution. Special leave was granted by an order dated 30 July 1954, and the present appeal proceeds on that basis. For a proper understanding of the matters that led to the High Court’s decision, a brief summary of the preceding events is required. The alleged misappropriation came to light in March 1948 when Messrs May & Baker Ltd. sent a reminder to the Civil Surgeon of Almora indicating that certain bills remained unpaid and outstanding. The then‑incumbent Civil Surgeon, Dr Kar, investigated the complaint and discovered that the appellant, who was serving as Head Clerk at that time, was on leave. The Civil Surgeon sent a notice to the appellant asking him to provide an explanation. The appellant responded on 5 March 1948 with a letter marked Exhibit P. 8, containing statements that the prosecution later claimed demonstrated his guilt in the alleged criminal misappropriation. According to the prosecution’s narrative, the money that was said to have been misappropriated was recovered from the appellant and, in March 1948, paid to the firms whose bills were outstanding but had been shown as settled in the accounts. The matter was subsequently handed over to the police for investigation in June 1949, when the Deputy Commissioner of Almora ordered the Deputy Superintendent of Police to look into the case. After the police investigation, a charge‑sheet was filed on 13 November 1949, and the case was finally submitted by the Sub‑Police Officer of Almora on 10 July 1950, thereafter being received in court at an unspecified date. The case was formally registered in the court of the Sub‑Divisional Magistrate of Almora on 7 August 1950, under section 409 of the Indian Penal Code. Although witnesses were summoned, none appear to have been examined for a considerable period. An order dated 7 November 1950 records that when the file was presented, the Sub‑Police Officer, the accused, and counsel appeared before the court. Because certain required documents had to be obtained from the Accountant‑General’s office, the proceedings were adjourned to 14 November 1950, with a direction to the Sub‑Police Officer to file a list of the necessary documents by that date.

In June 1949 the matter was finally placed with the police after the Deputy Commissioner of Almora directed the Deputy Superintendent of Police to investigate. Following that investigation a charge‑sheet was filed on 13 November 1949. The Superintendent of Police, Almora, submitted the case on 10 July 1950, and the submission was later received by the court, although the precise date of receipt is not recorded. A criminal case was then entered on 7 August 1950 in the court of the Sub‑Divisional Magistrate, Almora, charging the accused under section 409 of the Indian Penal Code. Although witnesses were subsequently summoned, none appear to have been examined for a considerable period.

The order‑sheet dated 7 November 1950 records that when the file was presented, the Superintendent of Police, the accused and counsel were present in court. Because certain essential documents had to be obtained from the Accountant‑General’s office, the magistrate adjourned the proceedings to 14 November 1950 and instructed the Superintendent of Police to file a list of the required documents by that date. No action was evident on 14 November 1950, and the matter was further postponed to 30 November 1950. On that day the District Government counsel, who was handling the prosecution, stated that the documents in the Accountant‑General’s office would need to be summoned and examined. The magistrate, viewing the situation as indefinite, placed the file under section 249 of the Criminal Procedure Code in the record room, directing that it be retrieved once the documents became available. No explanation was offered as to how section 249 could be applied to a warrant case such as this, and it is not normally applicable to cases falling within that chapter. Consequently, after 30 November 1950 the case appeared to remain dormant for an extended period, suggesting that the prosecution was either unprepared or not proceeding with sufficient seriousness.

On 4 June 1951 the District Government counsel applied to the Sub‑Divisional Magistrate for the issuance of summonses to certain witnesses for examination on 15 June 1951, and the magistrate ordered the summonses. The proceedings were then transferred to the Judicial Officer, Almora, who commenced the examination of witnesses on 16 June 1951. The Judicial Officer examined the first witness, Shib Lal Tewari, on that date. Subsequent examinations included Bishun Singh and Mohan Singh on 21 August 1951, Shiv Lal Sah and D. N. Pandey on 25 October 1951, and Hira Lal on 10 November 1951. Meanwhile, on 1 September 1951 the District Government counsel sought to have three further witnesses—Dr. D. M. Kar, Sri R. P. Kapoor and D. N. Pandey—examined, and the magistrate directed that summonses be issued to them on the same day. The records indicate that these summonses were indeed issued, and the examination of the named witnesses proceeded in accordance with the court’s directions.

On 7 September 1951 the Magistrate received a correspondence from the Civil Surgeon stationed at Allahabad. In that letter the surgeon asserted that a Magistrate’s certificate, required under section 507(2) of the Criminal Procedure Code and section 33 of the Indian Evidence Act, was essential because the personal attendance of the medical officer was desirable and a commission should not be issued for the examination of the witnesses concerned. The letter further suggested that if a commission could be arranged, it might be used to record the testimony of Dr D M Kar at Allahabad. The Court noted that neither the counsel representing the appellant nor the counsel appearing for the State of Uttar Pradesh, identified as Mr Mathur, was able to explain how the provisions cited by the Civil Surgeon applied to the present situation.

Subsequently the Court examined another communication, a letter dated 14 September 1951 from the Accountant‑General of Uttar Pradesh. That letter was a response to a communication dated 3 September 1951 and indicated that Mr R P Kapoor, who held the position of senior auditor in the Accountant‑General’s office, had been directed to appear before the court on 19 September 1951. However, the Accountant‑General asserted that Mr Kapoor was not authorised to give testimony based on unpublished records of the office, claiming privilege under section 123 of the Evidence Act. On 16 October 1951 the appellant filed an application with the Magistrate stating that the proceedings had been ongoing since March 1948 and that the prolonged delay had caused considerable hardship, urging a swift determination of the matter. In response, the District Government counsel submitted an application on 26 October 1951 requesting permission to examine three witnesses on commission and again emphasizing that the case had been pending for an extended period. The application also highlighted the necessity of the physical presence of Dr D M Kar and Mr R P Kapoor in court. Accordingly, on the same day the Magistrate ordered that a commission be issued for the examination of those witnesses. Thereafter, on 29 October 1951 the prosecution presented interrogatories for the examination of Dr B R Jain and Srimati Malti Devi Joshi. Further interrogatories were filed on 10 November 1951 concerning Dr D M Kar, and on 14 November 1951 for the examination of Sri G R K Tandan, Sri Lakshmi Shankar, Sri Biswanath and M N Dube. On 12 November 1951 the accused filed an application objecting to questions numbered 5, 6 and 9 directed to Dr D M Kar, characterising them as leading and therefore unsuitable for examination‑in‑chief. The accused also insisted that Dr Kar and Mr Kapoor should appear in person to give their testimony and that their cross‑examination should be conducted in court; if personal appearance were impossible, the accused proposed that the cross‑interrogatories attached to the petition be sent together with the interrogatories. The learned Magistrate subsequently addressed this application.

In response to the accused’s application, the magistrate ordered that the questions be rewritten in a language different from the one originally used. The cross‑interrogatories concerning those witnesses were subsequently filed on later dates, the specific dates of which the record does not deem necessary to detail. The court’s examination of the file revealed a further application filed by the prosecution, dated 14 November 1951, which sought permission to examine four additional witnesses in person in addition to the important witnesses whose evidence had already been scheduled for commission. The prosecution explained that the accused was eager for a speedy judgment and therefore requested that these four witnesses be examined directly. It reiterated its request that the named witnesses be summoned and examined in the courtroom. Accordingly, the magistrate issued an order stating that, at the last hearing, it had been agreed that all remaining prosecution witnesses would be examined on commission, and on that basis the questions for Sri Kapoor had been prepared. However, the magistrate added that if the prosecution considered Sri Kapoor’s testimony to be indispensable, the magistrate would allow a single appearance before the court, directing that Sri Kapoor be notified by telegraph to appear on 30‑11‑1951, and that if he could not attend, his interrogatories should be sent immediately. The magistrate noted that the case had been pending for an extended period and that only Sri R. P. Kapoor could be called on the next day of hearing, while for the other witnesses commission should be issued because they were located far from Almora. As a result of these directions, the important witnesses, including the two civil surgeons who were in office during the alleged misappropriation and the auditors, were examined on commission through interrogatories, despite the prosecution and the accused both insisting that at least the most crucial witnesses should be examined in open court. The accused submitted cross‑interrogatories that addressed the matters raised in the prosecution’s examination‑in‑chief. The witnesses answered the interrogatories before the officer to whom the commission had been issued, and on the basis of that evidence the accused was convicted. The High Court’s judgment recorded the defence’s contention that the sums not yet disbursed had been kept in the office safe and were only released at later dates, even though the cash books recorded earlier disbursement dates. In essence, the defence argued that although the cash books showed entries for disbursements on particular dates, the actual payments were made later, during which interval the money remained in the safe and the appellant had no dominion or possession over it. The defence submitted that under those circumstances no criminal misappropriation could be established. The learned judges of the High Court, however, found this defence untenable and, in light of the admissions contained in the case record, rejected it.

In the evidence marked as Exhibit P‑8, the Court observed that the record indicated a temporary misappropriation of the sums involved. After considering the arguments presented before this Court and the facts that have been recorded in the proceedings, the Court found that it was neither necessary nor advisable to pronounce any judgment on the veracity of either the prosecution’s narrative or the defence’s version. At the point when the principal witnesses for the prosecution were ordered to be examined through interrogatories on commission, it was clear that the accused’s plea could not yet have been placed before the Court, and therefore no prediction could be made about how the case might develop thereafter.

The matter before the Court is whether, in a case where the Head Clerk of a Civil Surgeon’s office is charged with criminal breach of trust for amounts allegedly misappropriated during a specific period, the trial adhered to established procedural rules. The Court noted that, had the senior officers promptly inspected the registers and performed the duties imposed on them by the applicable rules and regulations, any misappropriation might have been discovered much earlier. The trial, therefore, appears to be in accordance with accepted practice and not in breach of procedural requirements, even though the testimony of the important witnesses was obtained outside the courtroom, which is the forum responsible for evaluating the evidence and deciding the case. It is a fundamental principle of criminal law, recognized in all legal systems, that evidence against an accused must be recorded in his presence and in open court. This requirement enables the accused to challenge any part of a statement that he wishes to dispute, and it allows the presiding officer to personally observe the witness’s demeanor and assess the credibility of the testimony. The accused also benefits from the opportunity to test the truth of the deponent’s statements through cross‑examination in a public setting, allowing a point‑by‑point analysis of the witness’s answers. However, when specific circumstances prevent a witness from appearing in court, the Criminal Procedure Code permits examination on commission, whereby the prosecution may conduct a direct examination and the accused or his counsel may conduct a cross‑examination. Section 503, as it existed prior to its amendment in 1955, provided that whenever a High Court, Sessions Court, District Magistrate or Presidency Magistrate, in the course of an inquiry, trial or other proceeding under the Code, determined that a witness’s examination was necessary for the ends of justice and that the witness could not be produced without unreasonable delay, expense or inconvenience, the authority could dispense with the witness’s attendance and issue a commission for his examination.

In the situation where a court or a magistrate found that the attendance of a witness would be unreasonable because of delay, expense or inconvenience, that authority could dispense with personal attendance and issue a commission for the witness’s examination in accordance with the relevant chapter of the Code. Sub‑section (2) of the provision stated that when, during an inquiry, trial or any other proceeding before a magistrate who was not a District Magistrate or a Presidency Magistrate, it appeared necessary for the ends of justice to obtain testimony from a witness but the witness could not be produced without unreasonable delay, expense or inconvenience, the magistrate was required to apply to the District Magistrate. The application had to set out the reasons for seeking a commission, and the District Magistrate could then either issue the commission or reject the request. Section 506 of the Criminal Procedure Code outlined one method of conducting examinations on commission. Sub‑section (1) allowed the parties in any proceeding where a commission had been issued to forward written interrogatories that the directing court or magistrate deemed relevant, and it authorised the magistrate, court or officer responsible for the commission to examine the witness on those interrogatories. Sub‑section (2) permitted any party to appear before the magistrate, court or officer, either through counsel or personally if not in custody, and to examine, cross‑examine and re‑examine the witness as the case required.

The Code of Criminal Procedure (Amendment) Act XXVI of 1955 introduced section 97, which replaced the words “District Magistrate or the Presidency Magistrate” in sub‑section (1) of section 503 with the term “any Magistrate”, and omitted sub‑section (2) while adding a proviso to sub‑section (1). In the present case, the proviso was not relevant. The amendment meant that before the enactment of section 97, only a District Magistrate or a Presidency Magistrate could issue a commission; any subordinate magistrate who considered a commission necessary had to apply to the District Magistrate, who could then either issue the commission himself or refuse it. The District Magistrate’s decision to issue or reject a commission was a judicial act and was subject to supervisory control by the appellate or revisional courts. Assuming that the commission in question had been properly established by an order of the District Magistrate as provided by the statute, the Court examined whether there was sufficient justification for departing from the usual practice of examining witnesses in open court. The Court noted that no evidence had been presented showing that the attendance of the two Civil Surgeons, the auditor and the other witness could not have been secured without unreasonable delay, expense or inconvenience, nor any indication that the surgeons resided outside Uttar Pradesh or faced any substantial inconvenience that would warrant their exclusion from court.

In this case the Court observed that the record did not show any circumstance in which the attendance of the two Civil Surgeons of Almora, the auditor and the other witness could only be secured after a delay, expense or inconvenience that would be unreasonable under the facts. No party suggested that the two officers who had held the post of Civil Surgeon lived outside Uttar Pradesh, nor was there any allegation of such officers facing a gross inconvenience or an unreasonable cost that would justify keeping them out of the courtroom. The Court noted that, had the Magistrate issued summonses to these persons and then discovered that their presence could not be obtained in the ordinary way, the Magistrate could have exercised the power to waive their physical attendance in court. Before resorting to a commission, the Magistrate should first have made an effort to determine whether the normal practice of examination in open court could be followed, and only after establishing the impossibility of such a process should a commission have been ordered. The Court further held that the mere fact that the proceedings had become protracted for an extraordinary length of time, for reasons that are not clearly reflected in the record, cannot by itself constitute a basis for issuing a commission. Such delay may indicate that the higher officers were not eager to pursue the matter promptly, but it relates only to the speed of case disposal, not to the ability to obtain the witness’s evidence in court. Consequently, the Court found no justification on the record for the issuance of a commission, and even less justification for the use of mere interrogatories. The Court then explained that the power to issue a commission under the Code of Civil Procedure is confined to the situations enumerated in sections 75 to 78 and Order 26 rule 1, which specify the circumstances in which a court may direct a commission. Generally, when a person resides within the local limits of the court’s jurisdiction, is not exempted by the Code, and is not unable to attend because of sickness or infirmity, that person must be examined in court. Under sections 75 to 78 and Order 26 rule 4 of the Civil Procedure Code, a commission may be used only when the witness lives beyond the jurisdiction, is about to leave the jurisdiction before the scheduled date of examination, or is a government servant whose duties would be prejudiced by personal attendance. Although the Code of Criminal Procedure does not impose the same explicit limitations, the Court emphasized that this absence of restriction should make the presiding officer exercise even greater care and caution before authorising a commission. The accused, in ordinary circumstances, possesses the inherent right to have the evidence against him recorded in open court, and any departure from that principle must be justified by compelling reasons.

In this case the Court observed that a witness should ordinarily be examined in the open presence of the accused, and any departure from that rule should be limited to truly exceptional circumstances. The Criminal Procedure Code prescribed the manner in which such discretion ought to be exercised. The Court referred to the early decision in Queen‑Empress v. T. Burke (I.L.R. (1884) 6 All. 224) where it was held that it was not proper to allow the evidence of an important prosecution witness to be taken on commission merely because it would be inconvenient for the witness to attend court. The Court also recalled the ruling in Mohammad Shafi v. Emperor (A.I.R. 1932 Patna 242) that sections 503 and 506 of the Criminal Procedure Code should be employed sparingly and only in the clearest of cases. The Court noted that reliance on further case law was unnecessary because the determination depended on the facts of each individual case. As a general principle, the Court explained, the witnesses whose testimony was essential to establishing the case against the accused had to be examined in court, and the issuance of a commission should be confined to formal witnesses whose appearance could not be secured without causing unreasonable delay or inconvenience. The purpose of examining witnesses on commission was primarily to obtain testimony from persons who were not parties with a direct interest, such as a complainant, or any person whose evidence was absolutely essential to prove the prosecution’s case. In short, witnesses in a criminal proceeding should not be examined on commission except in extreme situations involving delay, expense, or inconvenience, and in such cases the procedure of interrogatories should be used only when unavoidable. The Court emphasized that the magistrate’s discretion in this regard was a judicial discretion and should not be exercised lightly or arbitrarily.

The Court then turned to the specific facts of the present proceedings. It noted that the testimony of the two civil surgeons and that of the auditor formed the foundation of the case against the appellant. Because these witnesses were essential, the Court concluded that they ought to have been examined in open court. Consequently, the Court held that the magistrate had acted improperly by permitting these essential witnesses to be examined on commission, and therefore the accused had not received a fair trial. The Court further observed that, from the review of the record, there was no indication that the trying magistrate had approached the District Magistrate with an application as required under section 503(2) of the Criminal Procedure Code. Instead, responding to a request from the District standing counsel, the magistrate himself directed that a commission should be issued on 26 October 1951. By an order dated 12 November 1951, the magistrate ordered that the allegedly leading questions be modified and presented in a form that would remove their leading nature. The subsequent order dated 14 November 1951 also failed to show any attempt to approach the District Magistrate, as the order‑sheet recorded the magistrate’s earlier remarks without any indication of such an application.

The Court noted that there was no record of any attempt to approach the District Magistrate, as the order‑sheet only contained the earlier remarks of the trying Magistrate. The Court then examined the original documents filed in the lower courts and found that, following the order dated 26 October 1951 in which the trying Magistrate directed that commissions should be issued, a commission was in fact issued on 19 November 1951. The summons for that commission was issued by the Judicial Officer II, Magistrate 1st Class, Almora, and was addressed to the District Magistrate, Lucknow. The summons stated that, for the purpose of the trial, it was necessary to examine the person named as a prosecution witness and that the District Magistrate, Lucknow, was appointed Commissioner with authority under sections 503 and 506 of the Criminal Procedure Code to examine and cross‑examine that witness by interrogatories. The summons was then submitted to the District Magistrate, Almora, for forwarding to the District Magistrate, Lucknow, to effect the commission. On the same date, similar summonses were issued for other witnesses, and all were dispatched to the District Magistrate, Lucknow, for execution of the commissions.

The Court observed that the record showed no indication that the District Magistrate, Almora, exercised the independent judicial discretion required by the last clause of sub‑section (2) of section 503 of the Criminal Procedure Code, which mandates that the District Magistrate who receives the request must either issue the commission or reject the application, providing reasons for the decision. The Code requires the applying Magistrate to state the reasons for the request, and it obliges the District Magistrate to make a judicial order after considering the matter as a whole. The Court found no evidence that the District Magistrate, Almora, complied with these statutory requirements; rather, the District Magistrate merely acted as a forwarding authority for the commission prepared by the trying Magistrate. Consequently, the essential procedural rule that validates the issuance of a commission was not observed. The Court emphasized that this breach is of fundamental importance because, without compliance with the prerequisite procedural step, the evidence obtained through the commission is invalid and cannot be used against the accused.

The Court held that because the commission had not been validly issued, any testimony recorded on that commission would be improper and could not be relied upon against the accused. It characterised this shortcoming as a fundamental defect that struck at the very heart of the proceedings and was essential to their validity. Accordingly, the Court concluded that the entire trial process was tainted, and that the witness statements taken under the unauthorised commission must be completely removed from the record. The Court explained that the procedural safeguards prescribed by the Code must be observed before a commission can be issued, for they protect the accused’s rights and ensure the reliability of the evidence; when those safeguards are ignored, the resulting testimony lacks a legal foundation and cannot form part of the record. In light of this conclusion, the Court decided to allow the appeal and to remit the matter to the court of first instance for a fresh trial, in accordance with law and taking into account the observations set out above. The Court further directed that it would not be necessary to re‑examine the witnesses who had already been examined in the earlier trial, unless the trial court considered it necessary to do so. Accordingly, the appeal was allowed and the case was remanded for retrial.