Full Judgment Text
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PETITIONER:
DHARMANAND PANT
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT:
30/01/1956
BENCH:
MENON, P. GOVINDA
BENCH:
MENON, P. GOVINDA
JAGANNADHADAS, B.
IMAM, SYED JAFFER
KAPUR, J.L.
CITATION:
1957 AIR 594 1957 SCR 321
ACT:
Criminal trial-Examination of Prosecution witnesses on
commission -Propriety-Procedure-Code of Criminal Procedure,
ss. 503 and 5o6.
HEADNOTE:
As a general rule in criminal proceedings, the important
witmesses on whose testimony the case against the accused
has to be established must be examined in Court and usually
the issuing of commission should-be restricted to formal
witnesses or to such
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witnesses who 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 may 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 demeanour. Witnesses should not be examined on
commission except in extreme cases of delay, expense or
inconvenience 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
Presidency Magistrate could issue a commission, and if any
subordinate Magistrate found it necessary to have a witness
examined on commission 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
examined on commission through interrogatories, and the
order 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.
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JUDGMENT:
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 11 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 30. The Judgment of the Court was delivered
by
GOVINDA 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
Mount misappropriated, the matter was cleared up
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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
imp roper 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 misappropriation
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
outstanding. 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
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firms whose bills were outstanding but which had been shown
as having been paid in the accounts. The matter was put
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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 court 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, witnesses were
summoned but no witness seems 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 Accountant General’s office,
the case was adjourned to November 14, 1950, and the S. P.
0. 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 summoned and
examined. As the Magistrate was of opinion that it was an
indefinite thing, he consigned the file 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. D., M. for summoning some
witnesses for examination on
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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 Tor
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 Code 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
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September 3, 1951, to the effect that R. P. Kapoor, the
senior auditor of the Accountant General’s office, had been
directed to attend court on september 19, 195 1, 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 drawn out
proceedings he was greatly harassed and requested
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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 on 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 witnesses.
On October 29, 1951, the prosecution submitted
interrogatories for the examination of Dr. B. R. Jain and
Srimati Malti Devi Joshi. On November 14, 195 1, the
prosecution submitted the interrogatories for the
examination of Sri G. R. K. Tandan, Sri Lakahmi Shaiikar,
Sri Biswanath and M. N. Dube. With regard to Dr. D. M. Kar,
the interrogatories were filed in court on November 10,
1951. - On November 12, 195 1, 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 madean order that the questions should be
modified in adifferent 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 witnesses 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
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reiterated that the four witnesses mentioned therein may be
summoned and examined in person. On this the Magistrate
passed the 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 prosecution 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
if; 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
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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 were disbursed on later occasions
though the cash books showed that the disbursements were
earlier. In short, the 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
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would arise. The learned Judges of the High Court
considered this defence as unacceptable and in view of ,he
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 record, it has become unnecessary and in
fact inexpertness to express any opinion regarding the truth
or otherwise on either the prosecution version or the
defence case. 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 accused 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 in all systems of law 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
advantage faras the accused is concerned of testing the
truth or otherwise of the deposit’s testimony by cross’-
examination
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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 provides 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 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
proceeding 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 of
a witness whose evidence is necessary for the ends of
justice and that the attendance of such witness cannot be
produced 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 Magistrate 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
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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 I District Magistrate or the
Presidency Magistrate’ in sub-s. (1) of s. 503 the words any
Magistr any were substituted and sub-s. (2) was omitted but
a proviso was added to sub-s (1) 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.
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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 in-
convenience 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
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kept out of court. If the Magistrate had issued summonses
to these, witnesses and found that it was difficult to
procure their -attendance in the normal course of things,
then he could have Adopted the procedure of waiving the
attendanice in Court. 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 clearly 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 govemed by ss. 75-78 and 0. XXVI, r. I of which
lays down the cases in which lab 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 may 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
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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 in the case Queen-Empress v. T. Burke(1), it has
been held that it is not proper to allow the evidence of an
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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. Empe(2), 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 the circumstances 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 prose-
cution case. In short, witnesses in a criminal case should
not be examined on commission 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
(1) I. L. R. (1884) 6 All. 224.
(2) A.I.R. 1932 Patna 242.
338
we are of the view that the Magistrate has acted im.
properly in having the essential witnesses examined on
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
a. 503(2), Criminal Procedure Code. In response to the
request of the District standing counsel, the Magistrate
himself directed that 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, 195 1, 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 I 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
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authority under the provisions of ss. 503 and 506 of the
Criminal Procedure Code to examine and cross. examine 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 exame other witnesses on commission on the same date have
also been
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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 clauseof sub-s. (2)
to a, 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 Magis-
trate submits a request for issuing a commission, should
himself issue the commission or reject the application. it
abo 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 Almora, 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 i 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 abservations ’Made above. It will not be
335
necessary to re-examine the witnesses who have already been
examined in court unless the court thinks it necessary.
Appeal allows. Case remanded for retrial.