30 January 1956
Supreme Court







DATE OF JUDGMENT: 30/01/1956


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 41 322 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.



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                             323 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 324 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. 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 325 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



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 326 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                             327 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



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 328 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



                           329 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 42 330 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.



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                             331 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 332 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



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



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 334 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.