Criminal Appeal Nos
467 468 of 1989
From the Judgment and Order dated 2741989 of the Calcutta High Court in Crl
Revision No 641 and 720 of 1989
737 AD Giri DP Ghosh SB Pathak and BS Chauhan for the Appellants
NN Gooptu Attorney General PP Rao DK Sinha JR Das N A
Choudhary RB Mahato Raj K Gupta Siba Pada Banerjee Subhrangshu Banerjee and PC Kapur for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
The special leave is granted and the appeal stands disposed of by this order
The appellants accused are facing trial for an offence under secs
302 34 IPC and alternatively under secs
364 34 IPC before the City Sessions Court 13th Bench Calcutta in Sessions Trial No 1 of November 1987 Session Case No 587
The prosecution examined in all 34 witnesses
The last witness examined is the investigating officer PW 34
His examination went on for a number of days and came to an end on March 16 1989
On the next day that is on March 17 1989 the court examined the accused under sec
313 of the Criminal Procedure Code and recorded their statements
On March 21 1989 the public prosecutor filed an appli cation proposing some more questions to be put to the first appellant by way of re examination under sec
313 of the Code
On the same day the trial court by a considered order rejected that application
The relevant portion of that order runs as under I think the Ld PP can argue all these points as the time of advancing argu ments in this case and this case and the accused need not be re examined on this point under sec
313 Cr
The Ld
PP has also submitted that in question No 6 and question No 7 the word these witnesses should be replaced by the name of the witnesses
I think the names of the witnesses have already been put to the accused persons in the previous questions
So in the question No 6 and ques tion No 7 the name of the witnesses need not be mentioned again
Then it has been pointed out that the question No 4 in place of the words you all the question should be writ ten as Khurshed Bhulu Noor Alam and tenea under your order  I think it is implied
If other accused persons did anything at the order of one particular accused it is implied that all the accused persons 738 committed the mischief
So on this point also the accused need not be re examined again
Lastly it has been pointed out that in ques tion No 2 in place of PW 12 Abdullah Daweed the words PW 7 Md Mein should be written
On perusal of the evidence on record I find PW 12 Abdullah Dawood is also a witness of the occurrence and so the question need not be corrected
Discussing the above circumstances the petition filed by the prosecution this day for re examination of the accused persons under sec
3 13 Cr
PC for further re exami nation is rejected
On March 30 1989 the public prosecutor applied for adjournment of the case on the ground that he would like to move the High Court against the aforesaid order dated March 21 1988
The case was accordingly adjourned to April 18 1989
It is said that in between these days some correction slip was filed in the Court seeking 25 corrections in the statement of PW 34
The said slip was not accompanied by any application nor was it served on counsel for the accused
The trial court however in the interest of justice recti fied the typographical errors in the statement of PW 34 but refused to make other corrections which would have changed the substantive part of his evidence
The State moved the High Court with Criminal Revision No 64 1 of 1989 praying i Corrections be made in the evidence of PW 34 as per slip supplied to the Trial Court ii Additional statement of the first appellant under section 313 Cr
PC be recorded in respect of questions proposed by the prosecution and iiiTransferring the case to some other Bench of the City Sessions Court as the trial judge has acted with bias
There was another revision application filed by Smt
Anushila Devi who claims herself to be a sister of the deceased Mahesh Kumar Agarwal and as a party interested in the case
She also sought transfer of the case from the 13th Bench to some other Bench in the City Sessions Court on the apprehension that there would not be a fair trial in the case
The High Court on examination of the records found that the correction slip filed before the that court was not part of the records in the case
The High Court called for an explanation from learned trial judge who wrote to the High Court as follows The correction slip as referred to has not been pro 739 perly filed
It is not signed by anybody
The case number or the court number has not been mentioned in it
Nor any petition has been filed by the prosecution along with such concerned correction slip
Even the copy of the same has not been served upon the defence advocates
Still then as many as 16 typograph ical mistakes have already been corrected out of 25 mistakes as per correction slip
Other mistakes are not typographical mistakes and in the name of correction the evidence already recorded cannot be changed
So other mistakes have not been corrected
 He has also stated in the explanation Unsigned correction slip in 3 loose sheet could not be sent earlier as the case recorded was forwarded in a hurry and the said correc tion slip is now enclosed herewith The High Court however was not satisfied with the explanation and expressed the view that the trial judge has not followed the proper procedure envisaged in sec
278 of the Code since he has a closed mind 
The Court also found fault with the procedure adopted by the prosecution but liberty was reserved to the latter to file an application for re examination of PW 34
As to the claim for re examination of the accused under sec
3 13 of the Code the High Court said as follows We have heard at length Mr Durga Pada Dutta the learned Advocate appearing on behalf of the accused opposite parties who frankly conceded that point Nos 1 2 3 4  5 could be allowed
But objections were raised with regard to point Nos 6  7 when it was suggested by the prosecution that a question should have been put regarding seizure of hair on 51186 and of forwarding the same to the FSI for comparison with the scalp haft of deceased Mahesh Kumar Agarwal and the report of the FSL
It was suggested in point No 7 that a question should be put regarding presence of accused Omar near the crossing of BB Ganguly Street and CR Avenue at about 115 am on 511
1986 when the IO s testi mony was not very clear on the point
   We would have allowed ordinarily the applica tion filed on 213 1989 with regard to point Nos
1 to 5 and would have left the question on point Nos
6 740  7 to the trial judge on the basis of conces sion made by Mr Dutt the learned Advocate for the accused opposite parties and also on the basis of our own opinion on this aspect of the case but then since we direct the trial court to hold the re examination of PW 34 on a proper application being filed by the prosecu tion in this regard
We would expunge not only the examination under sec
313 Cr
PC which is already on record in respect of accused Mir Mohd Omar but also in respect of the other accused persons and direct the court below to proceed afresh in the matter after the record ing of evidence including the re examination of PW 34 is complete and we would direct the court below further to hear out the submis sions of the prosecution as welt as defence regarding framing of proper questions under sec
313 Cr
PC The High Court also accepted the demand for transfer of the case and the matter was left to the Chief Judge City Sessions Court either to try the case by himself or to transfer to some other Bench regard being had to the conges tion of the different Benches
In this appeal the accused have challenged the legality of the order of the High Court
We have heard Mr AD Giri learned counsel for the appellants and learned Advocate General for the State of West Bengal besides Mr PP Rao learned senior counsel for the private party
We have also perused the material on record
We find it difficult to support the impugned order
It seems to us that the High Court has needlessly interfered with the discretion exercised by the trial court with regard to correction slip as well as on re examination of the accused under sec
3 13 of the Code
We do not find any infirmity in the procedure followed by the trial Judge and if there is any it is only in the order of the High Court
The High Court was uncharitable to the trial judge when it observed that he has a closed mind 
It may be noted that the correction slip was not filed when the day to day evi dence of PW 34 was recorded and read over to him
Nor it was filed on the last day of recording his evidence
It does not bear any signature or the date
The trial judge however thought fit to correct typographical errors in the statement of PW 34 which he would have corrected even otherwise
He refused to make any correction or alter the substantive part of the evidence
Indeed he was fight in not tinkering with the substantive part of the evidence on the basis of an unsigned correction slip
741 In the Sessions trial the court has limited jurisdiction with regard to correction of the recorded evidence of any witness
Section 273 provides Procedure in regard to such evi dence when completed 1 As the evidence of such witness taken under sec
275 or sec
276 is completed it shall be read over to him in the presence of the accused if in attendance or of his pleader if he appears by pleader and shall if necessary be corrected
2 If the witness denies the cor rectness of any part of the evidence when the same is read over to him the magistrate or presiding judge may instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary
 The object of sec
278 is two fold firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes if any
If the correction suggested by the witness is one which the judge considers necessary he will make it at once as required by sub sec
1 but if the correction is such that the judge does not consider neces sary sub sec
2 requires that a memorandum of the objec tion be made and the Judge add his remarks if any thereto
In the present case the learned trial judge corrected all the typographical errors which he considered necessary but refused to carry out the substantive part of his deposition
The section is not intended to permit a witness to resile from his statement in the name of correction
The learned trial judge was justified in refusing to effect the change which he thought was intended to change the earlier version
He did not make a memorandum as the correction slip was unsigned and was not properly filed
Now since the correc tion slip as well as the remarks of the learned trial judge have become a part of the record nothing more need be done as the provisions of sec
278 are substantially complied with
We equally see no justification for the High Court for giving liberty to the prosecution to file an application for re examination of PW 34
In fact it will be seen from the operative portion of the impugned order the High Court proceeds on the assumption that PW 742 34 would be recalled for further examination
Here again it may be noted that the prosecution has closed the evidence
The accused have been examined under sec
3 13 of the Code
The prosecution did not at any stage move the trial judge for recalling PW 34 for further examination
In these cir cumstances the liberty reserved to the prosecution to recall PW 34 for re examination is undoubtedly uncalled for
There is yet another grave error committed by the High Court
It has expunged the entire examination under sec
3 13 of the Code of all the accused
We fail to understand the need for this extraordinary step
It is unfortunate that the High Court should make that order
Assuming it was on ac count of its permission to re examine PW 34 even in that case it would be sufficient to further examine the accused with reference to the additional circumstances  if any appearing against the accused on such re examination
The object of sec
3 13 was that the accused may be given an opportunity of explaining each and every circumstance ap pearing against him
The trial judge need not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to be put to the accused
It is his duty to examine the accused as per law
It is however open to the prosecution to invite the attention of the Court if any incriminating circumstance is left out and not put to the accused
We reserve liberty to the prosecution in this regard
The question of transfer of the case to another Bench of the City Sessions Court also does not arise now
We are told that the that judge has since retired and another judge has taken over his place
He shall therefore take up this case expeditiously and proceed preferably day to day as earlier ordered by the High Court
In the result the appeal is allowed and the order of the High Court is reversed
This order shall be communicated to the that court within two days by cougher service
The parties should appear before the trial court on August 14 1989 to receive further orders
TNA Appeal allowed


Summary:
The respondent let out his premises to the appellant by way of an unregistered lease deed which inter alia stated that without the permission of the landlord the premises should not he sub let except to associate concerns and the lessee was liable for payment of rent
Alleging that the appellant a manufacturing company of automobiles had sub let the premises to Ms United Automobiles without his consent the respondent initiated eviction proceedings
The appellant contended that Ms United Automobiles being the authorised dealer and distributor of the products manufactured by it has been in occupation of the premises in that capacity and cannot therefore he described as a sub tenant
Alternatively in view of the specific term in the lease deed the arrangement with the associate concern was not a sub lease without the consent of the respondent it was contended
The respondent took the stand that the term cannot be looked into as the document was not regis tered and that Ms United Automobiles cannot be assumed to he an associate concern  within the meaning of the term
Both the Rent Controller and the appellate authority held that the term of the lease was not inadmissible but ordered eviction on the ground that Ms United Automobiles was inducted in the premises as a sub lessee
The appellant filed a second appeal before the High Court which dismissed it in limine
Hence this appeal by special leave
Dismissing the appeal HELD 1
The appellant has created a sub lease in favour of its dealer and has thus parted with the possession within the meaning of section 141 Proviso b of the Delhi Rent Control Act
The appellant Com 730 731 pany has a separate legal entity and has nothing to do with Ms United Automobiles except that the latter is the dealer distributor of some of its manufactured articles
Ms United Automobiles is not a licensee and is not in posses sion of the premises on behalf of the appellant
The mone tary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle and does not include the right of enjoyment of the premises
The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle
The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material
733E G 2
The question whether a lessee is entitled to create a sub lease or not is undoubtedly a term of the transaction of lease and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation
If a document is inadmissible for non registra tion all its terms are inadmissible including the one dealing with landlord s permission to his tenant to sub let
The appellant cannot in the present circumstances be allowed to rely upon the clause in the unregistered lease deed
734C D Sachindra Mohan Ghose vs Ramesh Agarwalla AIR 1932 Patna 97 referred to
In the instant case a perusal of the clause relied on by the appellant would show that it contains the respond ent s consent in general terms without reference to Ms United Automobiles
As a matter of fact Ms United Automo biles came to be inducted as a sub tenant much later
Such a general permission cannot be treated to be the consent as required by section 141 Proviso b of the Act
Since consent of the respondent was not obtained specifically with refer ence to the sub letting in favour of Ms United Automobiles the clause in the lease deed cannot save the appellant even if it be assumed in its favour that the clause is admissible and the sub lessee is appellant s associate concern
734E G Ms Shalimar Tar Products vs SC Sharma   relied on