Case ID: 86

Judgment:
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. T.R. 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 19(f) 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	 P.W. 2	 when the deceased came there about 12 15 p.m. 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	 P.W. 4. The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper Jit Singh	 P.W. 2	 made the first information report at 12 a7 p.m. within 15 minutes of the occurrence. The motive is proved by Bhag Singh	 P.W. 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 (P.W. 5) and Jaswant Singh (P.W. 6) have been believed. The only questions are (1) whether the conviction can be rested on their testimony and(2) whether certain irregularities in the trial vitiate it. No attack was made on the testimony of Balbir Singh	 P.W. 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 P.W. 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	 P.W. 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 (1)but 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 (1)(1934)I.L.R. 15 lah.331. 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 3J	7 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 G.W. Hayfield(1) does not arise here because the Sessions Court did not refuse to examine Jaswant Singh	 P.W. 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 S.H. Jhabwa la vs Emperor (2)and the Full Bench of the Lahore High Court in Mussammat Niamat vs The Crown(3) 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) I.L.R. 17 Lah. (2) A.I.R. 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 are.examined 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 say"and 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 State(1). 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	 P.W. 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 State(1) 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, P.W. 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, P.W. 2, said that the statement made by him in the committal proceedings was not read over to him and so did Jagir Singh, P.W. 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 Emperor(2) 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, P.W. 2., and Jagir Singh, P.W. 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) A.I.R. 1936 P.C. 253 at 258. (3) A.I.R 1927 P.C. 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 evidence.which 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. 
92	Civil Appeal No. 4 of 1952. Appeal from the judgment and order of the High Court of Judicature for the Punjab at 698 Simla dated 24th May, 1951, in Civil Writ No. 15 of 1951. M.L. Manekshaw (P. N. Bhagwati, with him) for the appellant. M.C. Setalvad, Attorny General for India (G. N. Joshi, with him) for the respondent. May 26. The Judgment of the Court was delivered by MAHAJAN J. This is an appeal from the judgment of the High Court of Judicature of the State of Punjab dated the 24th May, 1951, dismissing the petition filed by the appel lants for writs of certiorari, prohibition and mandamus against the respondent. Aboobaker Abdul Rahman, the father of the appellants, was ,possessed of considerable movable as well as immovable properties including a. cinema theatre, known as the Imperi al Cinema. situateat Bombay. Soon after the partition of India, he went to Pakistan and was in Karachi in the month of September, 1947, where he purchased certain properties in that month. On information supplied by one Tek Chand Dolwani to the Additional Custodian of Evacuee Property, the Addi tional Custodian started proceedings under the Bombay Evacu ees (Administration of Property) Act, 1949, against Aboobak er in or about the month of July, 1949. During the pendency of the said proceedings, the Government of India Ordinance XXVII of 1949 came into force. Thereupon, on the 16th Decem ber, 1949, the Additional Custodian issued a notice to the said Aboobaker under section 7 of the Ordinance and a fur ther notice on the 11th January, 1950, to show cause why his property should not be declared to be evacuee property. Pursuant to the said notices an enquiry was held by the Additional Custodian of Evacuee Property who after recording the statement of the said Aboobaker and examining some other evidence produced by the said Tekchand Dolwani and taking into consideration the written statement filed by him, adjudicated on the 8th February, 1950, that 699 the said Aboobaker was not an evacuee. He, however, issued another notice to Aboobaker on the same day calling upon him to show cause why he should not be declared an intending evacuee under section 19 of the said Ordinance. On the 9th February, 1950, he adjudicated him as an intending evacuee. On the 31st March, 1950, Tekchand Dolwani being the informant and interested in the adjudication of the said Aboobaker as an evacuee, filed an appeal against the order of the 9th February to the respondent (The Custodian General of India) praying for an order declaring the said Aboobaker an evacuee and that he being the first informant should be allotted the said cinema. On the 18th April. 1950, the Ordinance was replaced by Act XXXI of 1950. The appeal was heard by the respondent in New Delhi on the 13th May. 1950. At the hearing it was urged on behalf of Aboobaker that he having been declared an intending evacuee and he having accepted that order, no appeal lay therefrom and that the said Tekchand Dolwani was not a person ag grieved by any order passed by the Additional Custodian and therefore had no locus standi to appeal under the provisions of section 24 of Ordinance XXVII of 1949. The hearing of the appeal was concluded on the lath May, 1951 and it is alleged in the written statement of the respondent that the order was dictated by him on the same day after the conclusion of the hearing and was also signed by him and it bore that date. Aboobaker suddenly died on the 14th May, 1950, which was a Sunday and the respondent pronounced the order written on the 13th to the counsel of Aboobaker on the 15th May, 1950. By this order the respond ent held that the appeal purporting to be from the order passed by the Additional Custodian on the 9th February, 1950, declaring the said Aboobaker an intending evacuee in effect and in substance was directed against the order made on the 8th February in the proceedings started under section 7 of the Ordinance declining to declare the said Aboobaker 's property as evacuee property. 700 He further held that the said Tekchand Dolwani was interest ed in the appeal and had locus standi to prefer it. Having overruled the preliminary objections raised by the appel lants, the hearing of the appeal was adjourned and further inquiry was directed to be made in the matter. Notices of the adjourned hearing of the appeal were given from time to time to the two appellants. On the 30th February, 1951, they were informed that the appeal would be heard on the 7th March, 1951. The two appellants allege that they are some of the heirs enti tled to the estate of the said Aboobaker. Two of his sons migrated to Pakistan and one of the appellants is his third son and the other appellant is his only daughter. Being aggrieved by the order of the respondent dated the lath May, 1950, the appellants filed a petition in the High Court of the State of Punjab at Simla on the 26th February, 1951, under article 226 of the Constitution, praying for a writ of certiorari for quashing and setting aside that order and for a writ of prohibition or mandamus directing the said respondent to forbear from proceeding with the hearing of the said appeal on the 7th March, 1951, or on any other date or dates. The appellants raised the following contentions in the petition: 1. That the appeal preferred by Tekchand Dolwani before the respondent was in terms an appeal against the order of the 9th February, 1950, and not an appeal against the conclusion reached on the 8th February, 1950, and inas much as the said order was made against Aboobaker and not in his favour, Tekchand had no right of appeal against the same and the respondent had no jurisdiction to entertain it or make any order therein. That Tekchand was not a person aggrieved by the order dated the 8th February, 1950, within the meaning of section 24 of the Ordinance and was not entitled to appeal against the said order and inasmuch as no appeal lay at his instance, the respondent had no jurisdiction to entertain it or make any order therein. 701 3. That after the death of Aboobaker on the 14th May, 1950, the respondent ceased to have jurisdiction to proceed with the hearing of the appeal or make any order therein. The High Court held that the order of the respondent pronounced on the 15th May, 1950, was not a nullity and the appeal preferred by Tekehand was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February, 1950, and that Tekchand was a person aggrieved within the meaning of section 24 of the Ordi nance. It accordingly dismissed the petition with costs but on the 27th June, 1950, granted him leave to appeal to this Court under article 133 of the Constitution. On the 30th July, 1951, during the pendency of the appeal in this Court, the respondent finally pronounced orders on the appeal of Tekchand and held that Aboobaker was an evacuee and his property was declared evacuee property. A petition under article 226 for quashing. this order is pending in the High Court of the State of Bombay. The learned counsel for the appellants canvassed the following points before us: 1. That the appeal to the respondent was against the order of the 9th and not against the order of the 8th, and as no appeal lay against the order of the 9th the respondent had no jurisdiction to hear it. That assuming that the appeal was preferred against the order of the 8th, that order was not an appealable order inasmuch as section 24 allows an appeal against an order declaring properties evacuee properties and not against any conclusion that a certain person is or is not an evacuee, and thus no appeal was Competent at all which could be heard by the respondent. That Tekchand was not a person aggrieved within the meaning of section 24 of the Ordinance and had no locus standi to prefer the appeal and the respondent had no juris diction to entertain it at his instance. 702 4. That the order pronounced on the 15th after the death of Aboobaker was a nullity. It is mentioned in the judgment of the High Court that Shri M.L. Manekshah conceded that the death of Aboobaker does 'not in any way affect the validity of the order pro nounced by the Custodian General on the 15th May, 1950. The learned counsel adopted practically the same attitude before us in view of the affidavit of the respondent in which it was affirmed that the order in question was dictated on the 13th May, 1950, and was signed on the same date. the High Court on the principle of Order XXII, Rule 6, Code of Civil Procedure, held that an order written but not pronounced could be pronounced even after the death of the party af fected. In these circumstances the last contention of the learned counsel does not require any further consideration and is rejected. The larger question that has been raised in the petition pending before the High Court of the State of Bombay that the properties of Aboobaker could not be declared evacuee properties after his death as they had devolved on his heirs was not raised in these proceedings and we have not been invited to decide it. That being so, the question is left open. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated the 13th May, 1950, a nullity, cannot be the subject matter of a writ of certiorari. It is plain that such a writ cannot be granted to quash the deci sion of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subjectmatter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some 703 particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course pre scribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be ques tions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M.R., in Reg. vs Commissioner Income Tax(1),, the formula enunciated above is quite plain but its application is often mislead ing. The learned Master of the Rolls classified the cases under two categories thus: When an inferior court or tribunal or body which has to exercise the power of deciding facts	 first established by Act of Parliament	 the legislature has to consider what powers it will give that tribunal or body. It may in effect say that	 if a certain stab of facts exists and is shown to such tribunal or body before it proceeds to do certain things	 it shall have jurisdiction to do such things but not otherwise. There it is not for them conclusively to decide whether that state of facts exists	 and	 if they exercise the jurisdiction without its existence	 what they do may be questioned	 and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal on body with a jurisdiction which includes the jurisdiction	 to determine whether the preliminary state of facts exists as well as the jurisdiction	 and on finding that it doe: exist	 to proceed further or do something more. Wher (1) 21 Q .B DD. 313. 704 the legislature are establishing such a tribunal or body with limited jurisdiction	 they also have to consider what ever jurisdiction they give them	 whether there shall be any appeal from their decision	 for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribu nal cannot give themselves jurisdiction by wrongly deciding certain facts to exist	 because the legislature gave them jurisdiction to determine all the facts. including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide	 without any appeal being given	 there is no appeal from such exercise of their juris diction. " The tribunal constituted to hear appeals under section 24 has been constituted in these terms: "Any person aggrieved by an order made under section 7	 section 16	 section 19 or section 38 may prefer an appeal in such manner and within such time as may be prescribed (a) to the Custodian	 where the original order has been passed by a Deputy or Assistant Custodian; (b) to the Custodian General	 where the original order has been passed by the Custodian	 an Additional Custodian or an Authorized Deputy Custodian. " Like all courts of appeal exercising general jurisdic tion in civil cases	 the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily	 a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error	 but by the very nature of things it has also jurisdiction to deter mine any points raised before it in the nature of prelimi nary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent	 whether a party has locus standi to prefer it	 whether the appeal in substance is from one or another order 705 and whether it has been preferred in proper form and within the time prescribed	 are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari could not issue to the respondent quashing the order of the 13th May	 1950	 was right. We are further of the opinion that none of the contentions raised has any merit whatsoever. For a proper appraisal of the contention that Tekchand Dolwani is not a "person aggrieved" within the meaning of those words in section 24 of the Ordinance	 it is necessary to refer to the rules made under the Ordinance. It is provided in rule S (5)	 that any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property	 may file a written statement in reply to the written statement filed by the persons interested in the property claiming that the property should not be declared evacuee property; the Custodian shall then either on the same day or on any subsequent day to which the hearing may be adjourned	 proceed to hear the evidence	 if any	 which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce. In the proceedings before the Additional Custodian	 Tekchand Dolwani filed a reply to the written statement of Aboobaker and adduced evidence in support of the stand taken by him that the property of Aboobaker was evacuee property. Further Tekchand Dolwani was the first informant who brought to the notice of the Custodian concerned that the property of Aboobaker was evacuee property and in view of the order of the Ministry of Rehabilitation he was	 as a first informant	 entitled to first consideration in the allotment of this property	 the Additional Custodian was bound to hear him on the truth and validity of the information given by him. When a person is given a right to raise a contest in a certain matter and his contention is negatived	 then 706 to say that he is not a person aggrieved by the order does not seem to us to be at all right or proper. He is certain ly aggrieved by the order disallowing his contention. Sec tion 24 allows a right of appeal to any person aggrieved by an order made under section 7. The conclusion reached by the Additional Custodian on the 8th February	 1950	 that Aboo baker was not an evacuee amounted to an order under section 7 and Tekchand therefore was a person aggrieved by that order. Section 43 bars the jurisdiction of the civil court in matters which fall within the jurisdiction of the Custo dian. In clause 1 (a) it provides as follows: "no civil court shall have jurisdiction to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property . " It is clear therefore that the Additional Custodian has to find and adjudicate on the question whether a certain property is or is not evacuee property and whether a certain person is or is not an evacuee and such an adjudication falls within the ambit of section 7 of the Ordinance. Lord Esher M.R. in In re Lamb	 Ex parte Board of Trade(1) observed as follows : "The meaning of the term 'person aggrieved ' was ex plained by this Court in Ex parte Official Receiver U). It was there determined that any person who makes an applica tion to a Court for a decision	 or any person who. is brought before a Court to submit to a decision	 is	 if the decision goes against him	 thereby a 'person aggrieved ' by that decision." Lord Justice Kay in the same judgment made the following observations: "The preliminary objection to the appeal is two/old: (1) It is said that the Board of 'trade are not 'persons aggrieved '. They are persons whom the court was bound to hear	 If they wished to be heard	 on the validity of this objection	 and the decision has (1) (2) 707 been against them. How it can be said that they are not 'persons aggrieved '	 by the decision	 passes my understand ing. When two persons are in the position of litigants before the High Court	 and the decision of the Court goes against one of them	 how it can be said that he is not a 'person aggrieved ' by the decision	 I cannot understand. I am clearly of opinion that the Board were 'persons ag grieved ' by this decision. Then (2) it is said that the decision is not an 'order '. When the High Court makes a declaration of right	 and further orders the costs of the application to be paid (which is the common form here used)	 and that is drawn up and sealed with the seal of the Court	 and	 I suppose placed on record	 as all orders of the High Court are	 it seems to me that it is clearly an order of the Court. " In our opinion	 Tekchand Dolwani is a person aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he had locus standi to prefer the appeal. The next point urged was that the appeal had been pre ferred against the order of the 9th February and not against the order of the 8th and that the respondent had no juris diction to hear it. Whether the appeal in substance had been preferred against the order of the 8th or the order of the 9th was a matter which was certainly within the compe tence of the respondent to decide and does not involve any question of jurisdiction whatsoever. Be that as it may. we have examined the memorandum of appeal presented by Tekchand Dolwani to the respondent and it appears to us that the High Court was right when it held that the appeal was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February. The relief claimed in appeal concerns the order of the 8th and the grounds of appeal only relate to this matter. The only defect pointed out was in the description of the order attacked in appeal. It is well settled that such errors of description cannot be allowed to prejudice the right of a party. The two 708 orders of the 8th and 9th made on consecutive days	 though under different provisions of the Ordinance	 were inter linked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken. The last point raised before us was not taken in the High Court and therefore we have not the benefit of that court 's decision on the point. It was contended that no appeal lay against the order of the Additional Custodian dated the 8th February declining to declare Aboobaker an evacuee	 that the only order that the Custodian is entitled to pass under section 7 is an order declaring any property to be evacuee property and that it is this order and this order alone which is appealable under section 24. In our opinion	 this contention is without force. Section 24 con fers a right of appeal against all orders made under section 7 and does not specify the nature of the orders made appeal able. In an enquiry under section 7 the first point for adjudication is whether a certain person falls within the definition of the word "evacuee" given in the Ordinance. Ii he comes within the ambit of the definition	 then any property heldby him becomes evacuee property. The civil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee proper ty	 or whether an evacuee has any right or interest in any evacuee property. The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudica tion under section 7 and is as such appealable. It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee	 then he is not entitled to make any order whatsoever but has just to file the proceedings. This contention is unsound. When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead 709 evidence	 then the decision of the court whether favourable or unfavourable to him has to take the form of an adjudica tion and necessarily amounts to an order. Reference in this connection may be made to the decision of the Federal Court in Rayarappan Nayanar vs Madhavi Amma(1) on an analogous	provision of the Code of Civil Procedure contained in Orders XL	 Rule 1	 and XLIII	 Rule 1 (s). Order XLIII	 Rule 1 (s) makes any order made under Order XL	 Rule 1	 appealable	 while Order XL	 Rule 1	 only empowers the court to appoint a receiver. It was held that the order removing a receiver was appealable under Order XLIII	 Rule 1	 inas much as such an order fell within the ambit of Order XL	 Rule 1	 and the power of appointing a receiver included the power of removing or dismissing him. The present case stands on a higher footing. The power of granting a certain relief includes obviously the power of refusing that relief. In our opinion	 therefore	 the order made by the Additional Custodian refusing to declare Aboobaker an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section	 24. The result is that this appeal fails and is dismissed with costs. Appeal dismissed.

Summary:
The Sessions Court has power to examine witnesses who were not examined before the Committing Magistrate because of sec. 540	 Criminal Procedure Code	 and if the witness is treated as a prosecution witness and examined by the prose cuting counsel instead of by the court	 that at best would be an irrigularity curable by sec. 537 of the Code. The proper time to object to such a procedure would be at the trial itself. Sher Bahadur vs The Crown (I.L.R. and Queen Empress vs G.W. Hayfield (I.L.R. 14 All. 212)distin quished S.S. Jhabwala vs Emperor (A.I.R. 1933 All. 690) and Mussamat. Niamat vs The Crown I.L.R. 17 All. 176) approved. Emperor vs Channing Arnold referred to. Resort to sec. 145 of the Evidence Act is necessary only if a witness denies that he made the former statement. In that event it would be necessary to prove that he did and if the former statement was reduced to writing	 then sec. 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. The former statement cannot be used as substantive evidence unless sec. 288	 Criminal Procedure Code	 is called in aid but even without sec. 288 the court would be entitled to say	 basing on the evidence in chief which is the substantive evidence	 that what the witness said to the police or the Committing Magistrate	 is the true version	 not because those state ments form substantive evidence	 but because they tally with the evidence in chief which is substantive. If a former statement can be brought in under sec. 157 of the Evidence Act	 it can be transmuted into substantive evidence by the application of sec. 288 of the Criminal Procedure Code. Tara Singh vs The State ; distinquished. 813 In the certificate of the Committing Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and the witness admitted it to be correct the court is bound to accept this as correct under sec. 80 of the Evidence Act until it is proved to be untrue. It is not necessary nor desirable to examine the Commit ting Magistrate to prove the truth of his certificate. Kashmera Singh vs The State of Madhya Pradsh [1952] (S.C.R.) 526 followed. Even if it be true that the deposition was not read over	 that would only amount to a curable irregularity and 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	 the objection cannot be sustained.