DHARMANAND PANT Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) 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 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, 1934, and it is in pursuance to the special leave so granted that the appeal is before us.

(2.) 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 M/s. May and 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 S.P.O. 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 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.O., 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.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 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 it is applicable to cases failing 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 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. 1 (Shib Lal Tewari) on June 16, 1951, P.W. 2, (Bishum 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 mean time 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 Code and S.33 of the evidence 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 14th September 1951 which was in reply to a letter dated 3rd September 1951 to the effect that R. P. Kapoor, the senior auditor of the Accountant-General's office, had been directed to attend court on 19th September 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 16th October 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 that the matter may be decided quickly. In this state of circumstances, the District Government counsel put in an application on 26th October 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 29th October 1951 the prosecution submitted interrogatories for the examination of Dr. B. R. Jain and Srimati Malti Devi Joshi. On 14th November 1951 the prosecution submitted the interrogatories for the examination of Sri. G. R. K. Tandan, Sri. Lakshmi Shankar, Sri. Biswanath and M. N. Dube. With regard to Dr. D. M. Kar, the interrogatories were filed in court on 10th November 1951. On 12th November 1951, the accused put in an application objecting to question 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 cross examination 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 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 14th November 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 reiterated that the four witnesses mentioned therein may be summoned and examined in person. On this the Magistrate passed the following order:-

(3.) 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 had been convicted.