Criminal Appeal No 12 of 1952
Appeal by special leave from the judgment and order dated 4th June 1951 of the High Court of Judicature of Punjab at Simla Bhandari and Soni JJ in Criminal Appeal No 109 of 1951 arising out of Judgment and order dated 19th March 1951 of the Court of the Additional Sessions Judge Ferozepore in Sessions Trial No 18 of 1951
TR Bhasin for the appellant
Gopal Singh for the respondent
April 30
The Judgment of the Court was delivered by BOSE J
This is a simple case though it was argued at great length on behalf of the appellant and a number of technical objections to the validity of the trial taken
The appellant Bhagwan Singh has been convicted of the murder of one Buggar Singh and sentenced to death
He has also been convicted under section 19f of the Indian Arms Act but we are not concerned with that here
The prosecution story is that the appellant bore a grudge against the deceased because the deceased had fired at the appellant s brother some six or seven years before the present occurrence and was sent to jail for 814 it
When he came out of jail the police thought it prudent to take proceedings against both sides under section 107 of the Code of Criminal Procedure
This resulted in the appel lant s two brothers and his cousins being bound down as also the deceased
This it is said constituted the motive for the present crime
On the date of the occurrence the 7th of September 1950 the prosecution state that the appellant was sitting at the shop of Jit Singh PW 2 when the deceased came there about 12 15 pm and borrowed Rs 5 from Jit Singh who lent him the money and entered the transaction in his ac count book
When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop
This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams
He was still carrying the pistol
It was taken away from him by Jagir Singh Patwari PW 4
The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh PW 2 made the first information report at 12 a7 pm within 15 minutes of the occurrence
The motive is proved by Bhag Singh PW 7 who has been believed and that part of the case was  not challenged before us
The occurrence was witnessed by a large number of persons of whom the prosecution examined only five
Two of them turned hostile in the Sessions Court and one gave evidence which has been regarded by the High Court as neu tral
The remaining two Balbir Singh PW 5 and Jaswant Singh PW 6 have been believed
The only questions are 1 whether the conviction can be rested on their testimony and2 whether certain irregularities in the trial vitiate it
No attack was made on the testimony of Balbir Singh PW 5 except that the two eye witnesses who 815 resiled in the Sessions Court contradict him
But it was argued that the evidence of Jaswant Singh PW 6 is viti ated because he was not examined by the Committing Magis trate
It was said that makes his evidence in the Sessions Court inadmissible
This raises a question which is largely academic in this case because the reason Jaswant Singh PW 6 was not examined by the Committing Magistrate is that the witness had gone away and was not available and it would have been a needless and indeed unjustifiable holding up of the pro ceedings to wait till he could be found and summoned
It is evident that the Sessions Court has power to examine wit nesses who were not examined before the Committing Magis trate because of section 540 of the Criminal Procedure Code and if the witness is treated as a prosecution witness and examined by the prosecuting counsel instead of by the Court itself that at best would be an irregularity curable by section 537
The proper time to object to such a procedure would be at the trial itself and as the appellant was represented in the Sessions Court by two counsel it is too late to object to such a venial irregularity in this Court
The learned counsel for the appellant took us elaborate ly through the provisions of Chapter XVIII of the Criminal Procedure Code and stressed in particular section 208 1 but we need not enter into this because section 540 is a complete answer in this particular case
None of the cases cited goes so far as to say that no witness who was not produced in the committal proceedings can be examined at the trial and we would be unable to agree if they did
The decision most in favour of the appellant s contention is Sher Bahadur vs The Crown 1but that does no more than consider such an omission as a curable defect
Abdul Qadir J said at pages 338 and 342 that it was conceded before them that section 540 could be called in aid in such a case and at page 339 the learned Judge dealt with the question of prejudice 11934ILR 15 lah331
106 816 and concluded at page 344 with the remark that the question is one of fact in each case and that in his opinion there was prejudice in that particular case
The other learned Judge took the same view at pages 3J7 and 348 and said The Court can of course always use its discretion and allow the production of further evidence
 It is to be observed that the objection in that case was raised at a very early stage and before the sessions trial had commenced also that the prosecution wished to examine no less than eight material witnesses out of a total of sixteen which they had deliberately withheld in the commit tal proceedings
We make no remarks about the correctness of the observations which travel beyond the question of prejudice because that is unnecessary here
It is sufficient to say that the learned Judges conceded the power under section 510 and decided the case on the question of preju dice
The question raised in Queen Empress vs GW Hayfield1 does not arise here because the Sessions Court did not refuse to examine Jaswant Singh PW 6 and so the question whether the prosecution could demand his examina tion as a matter of right never arose
The fact remains that they were permitted to do so and the defence raised no objection
The decision of the Allahabad High Court in SH Jhabwa la vs Emperor 2and the Full Bench of the Lahore High Court in Mussammat Niamat vs The Crown3 are against the learned counsel s contention
The decision of the Full Bench of the Lower Burma Chief Court in Emperor vs Channing Arnold 4 is not in point because the Committing Magistrate there refused to examine witnesses which the prosecution wanted and indeed insisted that he should examine and what was worse he prevented the accused from completing the cross examination of the only prosecution witness which the Committing Magistrate thought fit to examine
Whatever else may be thought of 1 All 212
3 Z936 ILR 17 Lah
2 AIR 1933 All 690
4 1912 13 Cr L
J 877
817 section 208 it is evident that the accused has the right to cross examine
at any rate those of the witnesses who areexamined by the Committing Magistrate on behalf of the prosecution and section 547 cannot be used as a cloak for a hasty committal before such cross examination is complete
In our opinion the cases cited do not justify the extreme position taken up by the learned counsel for the appellant and as section 540 is a complete answer in this case all we need consider is the question of prejudice
We do not hold that the Court is bound to examine a witness called under section 540 itself as a court witness and that it can never entrust the examination to the prosecuting counsel because even if that be the proper procedure no prejudice has been occasioned in this particular case
The irregularity here on this score if indeed it is one is so trivial as to be innocuous
A more important question is was the appellant taken by surprise and was prejudice occasioned because of that  We do not think so because Jaswant Singh was mentioned in the first information report recorded within 15 minutes of the occurrence as one of the eye witnesses and he was again mentioned as an eye witness in the calendar of the committal proceedings
The appellant was presumably supplied with the witnesses  statement to the police or at any rate he had the right to demand a copy under section 162 and if he did not do so It was presumably because neither he nor his two learned counsel wanted it
The first information report is a full one and sets out all the essentials of the prosecution case therefore with all that information in the possession of the appellant and his counsel it could be impossible for him to contend that he did not know what this witness was to prove
Had the witness travelled beyond the statements embodied in the first information report objection to the use of any thing not contained in it would have been understandable though to be effective such 818 objection would ordinarily have to be raised at the trial but as the witness does not do that there can be no objec tion on the score of prejudice
It is to be observed that the Explanation to section 537 requires a Court to take into consideration the fact whether any objection on the score of irregularity could have been raised at an earlier stage
Now the High Court bases its decision on the evidence of these eye witnesses and on the fact that the appellant was apprehended on the spot within a minute or two of the murder with the pistol still in his possession and had the learned Judges stopped there there would have been no foundation for the very elaborate network of technicalities upon which the learned counsel for the appellant embarked
But Bhand ari J Soni J concurring after saying that After a careful consideration of all the facts and circumstances of the case I entertain no doubt in my mind that Balbir Singh and Jaswant Singh P Ws have told nothing but the truth went on to sayand that Jit Singh and Jagir Singh who made correct statements before the police and before the Committing Magistrate have given false evidence in the trial Court with the object of saving the appellant from the gallows
 It was argued that the learned Judges have here used the evidence of these witnesses before the Committing Magis trate as substantive evidence despite the fact that it was legally inadmissible for that purpose because the formali ties prescribed by section 288 were not observed
Reliance was placed upon Tara Singh vs The State1
Even if that be so it would make no difference because the evidence of Balbir Singh and Jaswant Singh whom the learned Judges primarily believe is sufficient to afford a basis for the conviction and the mere fact that extraneous matter not necessary for the conviction was also called in aid would not affect 1  819 the result
But as a matter of fact the foundation for this attack is based upon incorrect assumptions
We will deal with Jit Singh PW 2 first
He supported the prosecution case in his examination inchief but resiled when cross examined
He was therefore treated as hostile and the learned Public Prosecutor was permitted to cross examine him
In cross examination the witness s statement in the Committal Court was read out to him and he was asked whether he had made such a statement and he said Yes
 When that statement is read it is found to tally with his evidence in chief and with the depositions of Balbir Singh and Jaswant Singh and with the first information report
Now it was not necessary to use the former statement as substantive evi dence at all and the fact that the learned High Court Judges placed this on a par with the statements to the police including of course the first information report indicates that they were not using the former statements as substan tive evidence but merely as corroboration of what was said in chief
The distinction is a subtle one and can perhaps be best explained in the following way
A witness is called and he says in chief I saw the accused shoot X
In cross examination he resiles and says I did not see it at all
 He is then asked but didn t you tell A B  C on the spot that you had seen it  He replies yes I did
 We have of set purpose chosen as an illus tration a statement which was not reduced to writing and which was not made either to the police or to a magistrate
Now the former statement could not be used as substantive evidence
It would only be used as corroboration of the evidence in chief under section 157 of the Evidence Act or to shake the witness s credit or test his veracity under section 146 Section 145 is not called into play at all in such a case
Resort to section 145 would only be necessary if the witness denies that he made the former statement
In that event it would be necessary to prove that he did and if the 820 former statement was reduced to writing then section 145 requires that his attention must be drawn to those parts which are to be used for contradiction
But that position does not arise when the witness admits the former statement
In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made
Of course that statement cannot be used as substantive evidence unless section 988 of the Criminal Procedure Code is called in aid
But even without section 288 a Court would be entitled to say in such a case basing on the evidence in chief which is substantive evidence
that what the witness said to the police or to the Committing Magistrate is the true version not because those statements form substantive evidence but
because they tally with the evidence in chief which is substantive
This is only one of the many ways in which a witness s testimony can be sifted and examined
Corroboration is as useful to test the truth of a story as any other method
In such a case what the Court really does though it may happen to put the matter the other way round is to say that in its opinion the substantive evi dence given in chief is true because it is corroborated by an earlier statement and for that reason namely because the version in chief is the true one the contradictory version given in cross examination is wrong not because of the contradiction embodied in the former statement but because of what was said in chief a version which it is now safe to believe on account of the corroboration afforded by the earlier statement
It is true the earlier statement could also have been used for contradicting the version given in crossexamination and in that event if it is in writing the limitations imposed by section 145 of the Evidence Act would have to be observed but the prosecution is not bound to do that
It has a choice
It can if it so chooses build up the version given in chief in any way it pleases and having done that use the version in chief to destroy the version in cross examination
821 But in the case before us there is no need to resort to these subtleties because here the depositions were brought on record and could be used as substantive evidence even if the formalities prescribed by section 145 of the Evidence Act were not observed for the very simple reason that there was no need in this cause to resort to section 145
As we have said the prosecution had a choice here because of the two conflicting versions given in chief and in crossexami nation
It was entitled to use the former statement either to contradict what was said in crossexamination or to corroborate what was said in chief
In either event sec tion 288 of the Criminal Procedure Code could be used to make the former statement substantive evidence because what the section says is subject to the provisions of the Indian Evidence Act and not subject to any particular section in it
Section 157 is as much a provision of the Indian Evi dence Act as section 145 and if the former statement can be brought in under section 157 it can be transmuted into substantive evidence by the application of section 288
Tara Singh vs The State1 is to be distinguished because there there were no two versions in the course of the same testimony
The witness in question was hostile from the start in the Sessions Court and the whole purpose of resort ing to section 288 was to contradict what he said there and no question of corroboration arose
The prosecution had no choice there as it was here of using the former statement either to contradict or to corroborate
We turn next to Jagir Singh PW 4
In his case there was no choice
He was hostile from the start and in his ease our observations in the ruling just referred to apply in full
But on an examination of his evidence we find that the formalities prescribed by section 145 were complied with
His cross examination in contrast to Jit Singh s where such a procedure was not necessary
shows that every circumstance intended to be used as contradiction was put to him point by point and passage by passage
That was 1  at 743
822 conceded but it was argued that this was done without drawing the witness s attention to the parts of the writing which were to be used for the purposes of contradiction
We are by no means satisfied that is the ease because at least one of the passages is reproduced in inverted commas and so must have been read out from the statement
But that apart
Immediately after the witness had been questioned about each separate fact point by point the whole statement was read out to him and he admitted that he had made it in the Committing Court
Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction that may in a given case confuse a witness and not be a fair method of affording him an opportunity to explain but in the present case the previous statement is a short one and the witness was questioned about every materi al passage in it point by point
Accordingly the procedure adopted here was in substantial compliance with what sec tion 145 requires
There can be no hard and fast rule
All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner
We are satisfied that was done here
The matter is one of substance and not of mere form
Jit Singh PW 2 said that the statement made by him in the committal proceedings was not read over to him and so did Jagir Singh PW 4
It was argued that in the absence of an enquiry that must be accepted as true and if true the evidence becomes inadmissible
Now the certificate of the Committing Magistrate en dorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be correct
The Court is bound to accept this as correct under section 80 of the Indian Evidence Act until it is proved to be untrue
The burden is on 823 the person seeking to displace the statutory presumption and if he chooses to rely on the testimony of a witness which the Court is not prepared to believe the matter ends there
The duty of displacing the presumption lies on the person who questions it
The Court is of course bound to consider such evidence as is adduced but it is not bound to believe such evidence nor is there any duty whatever on the Court to conduct an enquiry on its own
There is nothing in this point
But we again wish to discountenance the suggestion that the Committing Magistrate should have been examined to prove the truth of his certificate and we endorse the re marks we made in Kashmera Singh vs The State of Madhya Pradesh 1 based on the decision of the Privy Council in Nazir Ahmad vs King Emperor2 regarding the undesirability of any such practice
But even if the fact be true that the deposition was not read over that would only amount to a curable irregularity and as the Privy Council observed in Abdul Rahman vs King Emperor 3 in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said there is no point in the objection
The object of the reading over prescribed by section 360 of the Code of Criminal Procedure is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said
Therefore before prejudice can be substantiated on this score it must be disclosed by affidavit exactly where the inaccuracy lies
The next and last objection is on similar lines
Jit Singh PW 2 and Jagir Singh PW 4 said that their statements before the Committing Magistrate were made under the threats and duress of the police
It was argued that that should not have been rejected without further enquiry and a ruling in which a further enquiry was considered necessary was cited
Here 1  2 AIR 1936 PC 253 at 258
3 AIR 1927 PC 44 at 45 47
107 824 again it is no part of a Court s duty to enter upon a roving enquiry in the middle of a trial on matters which are collateral to the main issue
The burden is on the person making these allegations to substantiate them and if he chooses to rely on evidencewhich does not satisfy the Court he must  suffer the same fate as every other person who is unable to discharge an onus which the law places upon him
It was also argued that there was no proper compliance with the provisions
of section 342 of the Criminal Proce dure Code
We are satisfied that there was substantial compliance in this case
The facts were simple and few and the crucial matters were brought to the attention of the appellant
In any event the learned counsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which according to counsel ought to have been put to the appellant
We pressed him several times to disclose that but he was unable to do so
As we said at the outset the case is a very simple one in which a man was caught red handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence
The murder was committed in day light and there was no dearth of eye witnesses
Two have been believed and in the case of the other two certain statements made by them in the Sessions Court resiling from statements previ ously recorded in the committal proceedings have been disbe lieved
The appeal fails and is dismissed
We see no reason to interfere with the sentence of death
Appeal dismissed
Mehta


Summary:
The petitioner a registered co operative society carrying on the business of plying motor buses as stage carriages had permits for four routes which were due to expire
The State applied for permits for all these routes under Ch
IV of the  as amended by Act 100 of 956 and the petitioner applied for renewal of its own permits
The Regional Transport Authority rejected the petitioner s applications and granted those of the State
The petitioner s appeal to the State Transport Authority was rejected
But the High Court quashed the said orders under article 226 and directed a 1 2 3 1957 31 ITR250
23 178 reconsideration of the matter
The State published a scheme under section 68C Ch
IVA of the Act
The scheme was not however finalised
Thereafter the Regional Transport Authority purporting to reconsider the matter as directed by the High Court rejected the petitioner s applications for renewal and granted those of the State for permits
It was contended on behalf of the petitioner that in view of Ch
IVA of the Act the State had no right to apply for permits except thereunder and the grant of permits on applications made under Ch
IV was therefore illegal and infringed the petitioner s fundamental rights under articles 191g of the Constitution
It was further contended that the order violated article 14 as well
Held that both the contentions were without substance and must fail
The  as amended by Act 100 of 1956 lays down two independent sets of provisions relating to running of buses by the Government one tinder Ch
IV and the other Ch
IVA of the Act
The latter chapter by section 68F1 confers a special advantage on the Government when it proceeds under that chapter and entitles it to the necessary permits as a matter of right
Under Ch
IV of the Act however the Government cannot claim any such advantage
It has to compete with other applicants
The powers conferred by the two chapters being thus not one but two different powers the principle enunciated in Nazir Ahmad s case has no application
Since therefore the Government had a distinct right to apply for permits under Ch
IV of the Act no question of applying for permits without the right to do so and thereby infringing the petitioner s fundamental right under article 191g could arise
Nazir Ahmad vs King Emperor 1936 LR 63 IA 372 held inapplicable
Taylor vs Taylor  distinguished
Nor could the maxim expressio unius est exclusio alter us be of any help to the petitioner
That maxim has its utility in ascertaining the intention of the legislature
Since section 423a of the leaves no manner of doubt as to that intention by its clear indication that the Government cannot run buses as a commercial enterprise without first obtaining permitsunder section 421 Of the Act that maxim cannot operate so as to imply a prohibition against applying under Ch
IV of the Act
There was therefore no reason for holding that Ch
IVA of the Act contained the only provision under which the Govern ment could be allowed to ply stage carriages
Viscountess Rhondda s claim and Motilal vs Government of Uttar Pyadesh  considered
It was not correct to say that the State was not intended to compete with private citizens in obtaining permits under Ch
IV of the Act
Section 47 of the Act lends no support to such a proposition and article 196 of the Constitution indicates that the Government can enter into such competition without infringing any of the fundamental rights
179 The Regional Transport Authority in granting permits acts in a quasi judicial capacity
If its decision was in any way erroneous having regard to the proviso to section 471 of the Act that could not amount to a violation of article 14 of the Constitution
The petitioner had other remedies open to him
Nor could Ch
IV of the Act be said in view of article 196 of the Constitution to offend that Article by permitting open competition between the State and a private citizen