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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 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 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 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.

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 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 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.