DHARMANAND PANT versus STATE OF UTTAR PRADESH

Citation: [1957] 1 S.C.R. 321 · Decided: 30-01-1957 · Supreme Court of India · Bench: B. JAGANNADHADAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 Com-
missioner. 
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 Commis-
sioner 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 judg-
ments 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 in-
artistic 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 commis-
siorz-Propriety-Procedure-Code of 
Criminal Procedure, ss. 503 
and 506. 
As a general rule in criminal proceedings, the important wit-
nesses 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 wit-
nesses and the presiding officer may have the advantage and 
opportunity of hearing the witnesses and of noting their de-
rneanour. 
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 clea

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