JUDGMENT <NAME>, <NAME>

1. <NAME> was committed by the Magistrate of Moradabad to <ORG> of Moradabad for trial on a charge that on or about the 14th of July 1897, he did attempt to excite feelings of disaffection to the Government established by law in British India by publishing in a newspaper called <ORG>, of which he was proprietor, editor and publisher, an article entitled "Azadi band hone se kabal namuna" and had thereby committed an offence punishable under Section 124A of the Indian Penal Code and within the cognizance of <ORG>. In his examination before the Magistrate of Moradabad under Section 364 * of the Code of Criminal Procedure, 1882, <NAME> stated that he had published the issues of <ORG>, dated respectively 21st March 1897, 7th April 1897, 21st April 1897, 7th May 1897, 14th July 1897, 21st July 1897 and 28th July 1897. The article on the publication of which the charge was founded was contained in the issue of the newspaper of the 14th of July 1897.

2. In <ORG> Moradabad, <NAME> stated that his father's name was <NAME>, a Kayesth, and that he, <NAME>, lived in Moradabad, and was 35-36 years of age. Upon the charge being read to him <NAME> pleaded guilty. Upon being asked:--"Do you wish to give any reasons as to why you should not be punished for this offence?"--<NAME> replied:--" I can give no reason. Through inexperience I have committed this fault, for which I am very ashamed, and I wish to throw myself unconditionally upon the mercy of the Government. This is all I wish to say." <ORG> accordingly found <NAME> guilty of the offence of which he had pleaded guilty, and under Section 124A of the Indian Penal Code sentenced him therefor to eighteen months' rigorous imprisonment. From that sentence <NAME> has appealed to this Court. In the petition of appeal the grounds of appeal are stated as follows:

1. That the prisoner appellant having pleaded guilty, having tendered an unqualified apology for the offence with which he was charged, and having thrown himself entirely upon the mercy of the <ORG>, the sentence of 18 months' rigorous imprisonment passed upon him by the learned Sessions Judge is too severe.

2. That the judgment of the lower Court nowhere discloses the fact that the article upon which the prisoner appellant has been convicted was of such a serious character as to make its writer liable to a very heavy punishment.

3. That the lower <ORG>, in holding that a term of 18 months' rigorous imprisonment was in the case of the appellant a mild sentence upon the authority of the case of Queen-Empress v. <NAME>, has failed to take into account the differentiating circumstances which make the appellant's offence very much less serious and therefore deserving of a much lighter sentence.

4. That there is nothing on record which, after the appellant's plea and apology, would make him liable to anything more than a nominal punishment.

5. That upon the foregoing grounds the prisoner appellant prays for mitigation of the sentence passed upon him by the lower Court.

3. In order to determine whether or not this appeal should be allowed, and, if allowed, to what extent, it is necessary to consider Section 124A of the Indian Penal Code and to arrive at a conclusion as to the degree of culpability in <NAME> to be fairly and reasonably inferred from his acts. The section is as follows:

124A. Whoever by words, either spoken or intended to be read, or by signs, or by visible representation or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

Explanation.--Such a disapprobation of the measures of the <ORG> as is compatible with a disposition to render obedience to the lawful authority of the <ORG> and to support the lawful authority of the <ORG> against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the measures of the <ORG>, with the intention of exciting only this species of disapprobation, is not an offence within this clause.

4. That section has been under judicial consideration by Sir <NAME> in the <CITATION> . 19 Cal. 35; by Mr. Justice <NAME> on the trial of <NAME> in <ORG>, by a Full Bench of <ORG>, consisting of Sir <NAME>, C.J., Mr. Justice <NAME> and Mr. Justice <NAME>, on the application of <NAME> for leave to appeal to Her Majesty in Council by a Board of the Judicial Committee of Her Majesty's Privy Council, consisting of the Lord Chancellor, Lord <NAME>, Lord <NAME> and Sir <NAME>, on the application of <NAME> for special leave to appeal to Her Majesty in Council; and by Sir <NAME>, C.J., Mr. Justice <NAME> and Mr. Justice <NAME> in the appeal of <NAME> and <NAME> from the order of conviction and sentence of the Sessions Judge of Satara in their case.

5. If there be any difficulty as to the true meaning of Section 124A of the Indian Penal Code it is caused by the Explanation which forms part of that section. <CITATION> . 19 Cal. 35, it was contended by the counsel for the accused persons that "disaffection" and "disapprobation" were synonymous words and had one and the same meaning. On that contention it was observed by Sir <NAME>, and in our opinion correctly, having regard to the question before him:--" If that reasoning were sound, it would be impossible for any person to be convicted under the section, as every class of writing would be within the explanation." Sir <NAME> thus defined "disaffection" and "disapprobation" as those words are used in Section 124A :--" Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. <NAME> cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers, he will be guilty of the offence of attempting to excite disaffection within the moaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people and that they were used with the intention to create such feeling."

6. The charge which was before the jury in <CITATION> was that the accused had attempted to excite feelings of disaffection to the Government established by law in British India, and was not that they had in fact excited feelings of disaffection to the Government established by law in British India; and it is in relation to that charge which was before the jury that Sir <NAME> direction to the jury must be read. Later on in his direction to the jury Sir <NAME>, in referring to the articles in respect of the publication of which the charges under Section 124 A arose, said:--"Were those articles intended to excite feelings of enmity against the Government or on the other hand, were they merely expressing, though in strong language, disapprobation of certain Government measures? You will bear in mind that the question you have to decide has reference to the intention, and, in fact, the crime consists of the intention, for a man might lawfully do the act without the intention. The evidence of the intent can only be gathered from the articles. The ultimate object of the writer may be one thing, but if, in attaining that object, he uses, as the means, the exciting of disaffection against the Government, then he would be guilty under Section 124A . If you think that these people, with the object of procuring the repeal of the Age of Consent Act, or of increasing the sale of their paper, disseminated these articles, intending to excite feelings of enmity, you will be bound to find a verdict of guilty."

7. Mr. Justice <NAME> in his direction to the Jury in Queen-Empress v. <NAME>, in explaining Section 124A in reference to the charges in that case before the jury, said:" I agree with Sir <NAME> in the <NAME> case, that disaffection means simply the absence of affection." If that sentence had stood alone and was not explained by what followed, it would no doubt have constituted a misdirection. "Disaffection" necessarily implies an absence of affection, but a mere absence of affection is not "disaffection" within the meaning of Section 124A . Mr. Justice <NAME> in that part of his direction which immediately follows the sentence which we have quoted made it perfectly plain what in his opinion "disaffection," within the meaning of Section 124A , is. He said:

It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. 'Disloyalty' is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite: he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial, except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will of course find him guilty. But if you should hold that that charge is not made out and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings. You will observe that the section places absolutely on the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them; so that if you find that either of the prisoners has tried to excite such feelings in others, you must convict him, even if there is nothing to show that he succeeded.

Again it is important that you should fully realize another point. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124A , and would probably fall within other sections of the Penal Code . But even if he neither excited nor intended to excite any rebellion, or outbreak or forcible resistance to the authority of the Government, still, if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action, such as rebellion or forcible resistance, the test of guilt.

8. In directing the jury as to the meaning and effect of the Explanation in Section 124A , Mr. Justice <NAME> said:

Observe first that, as I have already said, while the first clause shows affirmatively what the offence made punishable by the section is, the explanation states negatively what it is not. It says that something ' is not disaffection 'and' is not an offence within this clause.' Therefore its object is to protect from the condemnation pronounced by the first clause certain acts which it distinguishes from the disloyal attempts which the first clause deals with. The next and most important point for you to bear in mind is that the thing protected by the explanation is 'the making of comments on the measures of the <ORG> with a certain intention.' This shows that the explanation has a strictly defined and limited scope. Observe that it has no application whatever unless you come to the conclusion that the writings in question can fairly and reasonably be construed as 'the making of comments on the measures of the <ORG>.' It does not apply to any sort of writing except that. It does not apply to any writing which consists not merely of comments upon <ORG> measures, but of attacks upon the <ORG> itself. It would apply to any criticisms of legislative enactments, such as the Epidemic Diseases Act , or any particular tax, or of administrative measures, such as the steps taken by the <ORG> for the suppression of plague or famine. But if you come to the conclusion that these writings are an attack, not merely upon such measures as these, but upon the <ORG> itself, its existence, its essential characteristics, its motives or its feelings towards the people, then you must put aside the explanation altogether and apply the first clause of the section. In the next place, supposing that you are satisfied that these writings can fairly and reasonably be construed as 'comments on the measures of the <ORG>' and not as attacks upon the <ORG> itself, still you cannot apply the explanation unless you believe that such comments were made with the intention of exciting only 'such a disapprobation of the measures of the <ORG> as is compatible with a disposition to render obedience to the lawful authority of the <ORG> and to support the lawful authority of the <ORG> against unlawful attempts to subvert or resist that authority.' This, you will see, draws a distinction between attempting to excite feelings of 'disaffection' to the <ORG>, and intending to excite only a certain species of 'disapprobation' of <ORG> measures; and protects the latter only. What is the meaning of 'disapprobation' of <ORG> measures as contrasted with 'disaffection' to the <ORG>? I agree with Sir <NAME> that while disaffection means the absence of affection, or enmity, disapprobation means simply disapproval; and that it is quite possible to like or be loyal to anyone, whether an individual or a <ORG>, and at the same time to disapprove strongly of his or its measures. This distinction is the essence of the section. It shows clearly what a public speaker or writer may do, and what he may not do. A man may criticise or comment upon any measure or act of the <ORG>, whether legislative or executive, and freely express his opinion upon it. He may discuss the Income-Tax Act , the Epidemic Diseases Act , or any military expedition, or the suppression of plague or famine, or the administration of justice. He may express the strongest condemnation of such measures and he may do so severely, and even Unreasonably, perversely and unfairly. So long as he confines himself to that, he will be protected by the explanation. But if he goes beyond that, and, whether in the course of comments upon measures or not, holds up the <ORG> itself to the hatred or contempt of his readers,--as, for instance, by attributing to it every sort of evil and misfortune suffered by the people, or dwelling adversely on its foreign origin and character, or imputing to it base motives, or accusing it of hostility or indifference to the welfare of the people-then he is guilty under the section, and the explanation will not save him.

The object of the explanation is to protect honest journalism and bond fide criticism of public measures and institutions with a view to their improvement, and to the remedying of grievances and abuses, and to distinguish this from attempts, whether open or disguised, to make the people hate their rulers. So long as a journalist observes this distinction he has nothing to fear. It seems to me that this view of the law secures all the liberty which any reasonable man can desire, and that to allow more would be culpable weakness, and fatal to the interest not only of the <ORG> but of the people. But now there are other words in the explanation which we have still to consider. To come within the protection of the explanation, a writing must not only be the making of comments on <ORG> measures with the intention of exciting only disapprobation of them as distinguished from disaffection to the <ORG>, but the disapprobation must be 'compatible' with a disposition to render obedience to the lawful authority of the <ORG> and to support the lawful authority of the <ORG> against unlawful attempts to subvert or resist that authority.

What that means is that even exciting disapprobation of <ORG> measures may be carried too far. For instance, if a man published comments upon <ORG> measures which were not merely severe, unreasonable or unfair, but so violent and bitter, or accompanied by such appeals to political or religious fanaticism, or addressed to ignorant people at a time of great public excitement, that persons reading those comments would carry their feelings of hostility beyond the <ORG> measures to their author, the <ORG>, and would become indisposed to obey and support the <ORG>, and if it could fairly be gathered from the writing as a whole that the writer or publisher intended these results to follow, then he would be guilty under the section and would not be protected by the explanation. Observe the nature of this ' disposition ' which makes the whole difference between a 'disapprobation' of measures which amounts to 'disaffection' to the <ORG>, and a disapprobation which does not. It is not merely 'a disposition to render obedience to the lawful authority of the <ORG>.' It is a disposition both to render obedience and also to support the lawful authority of the <ORG> against unlawful attempts to subvert or resist it. And it is a disposition to support that lawful authority against unlawful attempts not only to 'resist' it--that is, to oppose it, but also to 'subvert' it--that is, to weaken and undermine it by any unlawful means whatever. And lastly, it is a disposition to support the <ORG> against all such unlawful attempts whenever occasion may arise, not only against any particular unlawful attempt, proceeding or impending at the time of the publication.

9. In refusing the application of <NAME> to <ORG> for leave to appeal to Her Majesty in Council <NAME>, in delivering the judgment of the Full Bench, said:

The other ground upon which Mr. <NAME> has asked us to certify that it is a fit case to send to <ORG> is that there has been misdirection, and he based his argument on one major and two minor grounds. The major ground is that the section cannot be said to have been contravened unless there is a direct incitement to stir up disorder or rebellion. That appears to us to be going much beyond the words of the section, and we need say no more upon that ground. The first of the minor points is that Mr. Justice. <NAME>, in summing up his case to the jury, stated that disaffection meant the absence of affection; but, although if that phrase has stood alone, it might have misled the jury, yet, taken in connection with the context, we think that it is impossible that the jury can have been misled by it. That expression is used in connection with the law as laid down by Sir <NAME> in Calcutta in the <NAME> case. There Sir <NAME>, instead of using the words 'absence of affection,' said ' contrary to affection ' and if the words 'contrary to affection' had been used instead of 'absence of affection' in this case, there can be no doubt that the summing up would have been absolutely correct. Taken in connection with the context it is clear that by absenoe of affection the Judge did not mean the negation of affection, but some active sentiment on the other side. Upon that point we cannot certify that this is a fit case for appeal. In this connection, it must be remembered that it has not been alleged that there was a miscarriage of justice. The last point is in reference to the definition of the word 'Government.' It is a very minor point; but, striking out the words (which were not in the original charge) Mr. <NAME> has alluded to, we cannot see that there has been any misdirection as to the meaning of the word 'Government.' We, therefore, think the application must be refused.

10. On the application of <NAME> to <ORG> of Her Majesty's <ORG> for special leave to appeal to the Queen in <ORG> Mr. Justice <NAME>'s direction to the jury was elaborately criticised by an eminent counsel of <ORG>. In delivering the judgment of <ORG> the Lord Chancellor is reported to have said:--" Their Lordships are of opinion, taking the view of the whole of the summing up, which is of very great length, that there is nothing in that which, in their Lordships' opinion, calls upon them to indicate any dissent from or necessity to correct what is therein contained. Looking at the summing up as a whole, and looking at each part of what was said by the light of what else was said, speaking generally of the argument which has been presented to their Lordships, they are of opinion that no case has been made out, consistently with the rules by which their advice to Her Majesty has been guided hitherto in giving leave to appeal in criminal cases, and therefore they will humbly advise Her Majesty that this is not a casein which leave should be granted." (14 The Times Law Reports, p. 50.)

11. So far as we can form an opinion from the imperfect report before us of the judgments of <ORG> in the <NAME> case, we infer that Sir <NAME>, C.J., held the same opinion as to the meaning and effect of Section 124A of the Indian Penal Code as was expressed by Mr. Justice <NAME> in the case of <NAME>, and that an attempt to excite feelings of disaffection to the Government is equivalent to an attempt to produce political hatred of Government as established by law, to excite political discontent and alienate the people from their allegiance. Sir <NAME> apparently also held, and in our opinion rightly, that a man may be guilty of the offence of attempting to excite feelings of disaffection against the Government established by law in British India although in the particular article or speech he may insist upon the desirability or expediency of obeying and supporting Government. The reports which are before us of the judgments of Mr. Justice <NAME> and Mr. Justice <NAME> in the <NAME> case are too imperfect to enable us to form an opinion as to their construction of Section 124A . If their construction of Section 124A differs materially from the construction placed upon that section by Mr. Justice <NAME>, it necessarily follows that their construction would not be accepted as correct by <ORG>, which accepted Mr. Justice <NAME>'s direction to the jury in <NAME>'s case as a sufficient and not a misleading direction.

12. In our opinion anyone who, by any of the means referred to in Section 124A of the Indian Penal Code, excites or attempts to excite feelings of hatred, dislike, ill-will, enmity or hostility towards the Government established by law in British India, excites or attempts to excite, as the case may be, feelings of "disaffection" as that term is used in Section 124A , no matter how guardedly he may attempt to conceal his real object. It is obvious that feelings of hatred, dislike, ill-will, enmity or hostility towards the Government must be inconsistent with and incompatible with a disposition to render obedience to the lawful authority of the Government and to support that lawful authority against unlawful attempts to subvert or resist it. The "disapprobation of the measures of the Government" may or may not in any particular case be the text upon which the speech is made or the article or letter is written, but if, upon a fair and impartial consideration of what was spoken or written, it is reasonably obvious that the intention of the speaker or writer was to excite feelings of disaffection to the Government established by law in British India, then a <ORG> or a jury should find that the speaker or writer or publisher, as the case might be, had committed the offence of attempting to excite feelings of disaffection to the Government established by law in British India. To paraphrase is dangerous, but it appears to us that the "disaffection" of Section 124A is "disloyalty;"--that is the sense in which the word "disaffection" has been generally used and understood during the century. We are further of opinion that the ordinary meaning of disaffection in Section 124A , having regard to the evils at which Section 124A strikes, is not varied by the explanation contained in the section.

13. The intention of a speaker, writer or publisher may be inferred from the particular speech, article or letter, or it may be proved from that speech, article or letter considered in conjunction with what such speaker, writer or publisher has said, written or published on another or other occasions. Where it is ascertained that the intention of the speaker, writer or publisher was to excite feelings of disaffection to the Government established by law in British India, it is immaterial whether or not the words spoken, written or published, could have the effect of exciting such feelings of disaffection, and it is immaterial whether the words were true or were false, and, except on the question of punishment, or in a case in which the speaker, writer or publisher is charged with having excited such feelings of disaffection, it is immaterial whether or not the words did in fact excite such feelings of disaffection.

14. In the case before us <NAME> has pleaded guilty to an attempt by the publication of the article in question in the issue of his newspaper of the 14th of July 1897, to excite feelings of disaffection to the <ORG> established by law in British India. He was well advised to plead guilty, as on an examination of that article the only possible defence open to him was that of insanity. His counsel before us could not suggest that there was the slightest justification or excuse for the gross and libellous charges against the <ORG> contained in the article. <NAME> in publishing that article could have had but one object in view, and that was to excite amongst Her Majesty's Indian subjects, and particularly amongst Her Muhammadan subjects, feelings of disaffection, disloyalty to the <ORG> established by law in British India. The particular article taken in conjunction with other articles published in his newspaper on dates upon which, according to his own statement in <ORG>, he published his newspaper, shows that his object was to excite not merely passive disaffection, which in itself is an offence within Section 124A of the IndianPenal Code, but active disloyalty and rebellion amongst his Muhammadan fellow-subjects. The criminal offenoe which <NAME> committed is an exceedingly grave one. That offence he committed regardless of the ruin, misery, and punishment which would have fallen on any of his fellow-countrymen who might have been so ignorant as to believe that the statements which bepublished were true, and who, acting on such belief, might have entered upon a course of active disloyatly to the <ORG>. <NAME> is not a Muhammadan; he is a Kayesth. It may be assumed, from the fact that <NAME> was not for some considerable time to be found to meet this criminal charge, that, if his Muhammadan fellow-subjects had been induced by what he published to eater upon a course of active disloyatly, <NAME> would have been at a safe distance from the place of danger.

15. <NAME> alleges in his grounds of appeal that his plea of guilty and an apology, which he tendered after he had been committed for trial, entitled him to have only a nominal punishment inflicted upon him. His conviction was inevitable. An apology, particularly made after commitment, in such a case as this, need not be considered. Having regard to the gravity of the offence which <NAME> committed and to the misery, ruin and punishment which he might have brought upon ignorant people, the sentence which was passed upon him was entirely inadequate. We dismiss this appeal.

*[ Section 864 :--Whenever the accused is examined by any Magistrate, or by any Court other than a High Court established by Royal Charter or the Examination of accused Chief Court of the Punjab, the whole of such examination, how recorded. including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing, and that the record contains a full and true account of the statement made by the accused. In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, unless he is a Presidency Magistrate, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability. Nothing in this section shall be deemed to apply to the examination of an accused person under Section 263 ]


PETITIONER: M/S. ZORASTER AND CO. Vs. RESPONDENT: THE COMMISSIONER OF INCOME TAX, DELHI, AJMER, RAJASTHAN AND DATE OF JUDGMENT: 17/04/1960 BENCH: <NAME>, M. BENCH: <NAME>, M. DAS, S.K. SHAH, J.C. CITATION: 1961 AIR 107 1961 SCR (1) 210 CITATOR INFO : RF 1961 SC1633 (14,26,27,32) R 1963 SC1356 (121) R 1963 SC1484 (8) R 1965 SC1636 (16) R 1966 SC1466 (7) RF 1972 SC2048 (5) R 1990 SC1451 (5) ACT: Income-tax Reference--Power of High Court to call for supplemental statement of case-- Indian Income-tax Act , 1922 , s. 66(4) . HEADNOTE: The appellant entered into contract with <ORG> for the supply of goods, and in the assessment year 1942-43 Rs. 10,80,653 and in the assessment year 1943-44, Rs. 7,45,336 were assessed as its income by the Income-tax Officer. The supplies to <ORG> were made for. Jaipur by the appellant, and payment was by cheques which were received at Jaipur. The contention of the appellant was that this income was received at Jaipur outside the then taxable territories. This contention was not accepted by <ORG>, Delhi. The appellant then applied for a reference to <ORG> under s. 66(1) of the Indian Income-tax Act, and by its order dated December 10, 1952, the <ORG> referred the following question for the decision of <ORG>. " Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the <ORG> 211 of India were received by the assessee in the taxable terri- tories ?" <ORG> remanded the case to the <ORG> for a supplemental statement of case calling for a finding on the question " whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assessee firm given to the department in the matter ". The appellant questioned the order of <ORG> relying on the decision in <ORG> case,  1 S.C.R. 249. Held, that the enquiry in such cases must be to see whether the question decided by the <ORG> admits of the consideration of the new point as an integral or an incidental part thereof. The supplemental statement which the <ORG> is directed to submit must arise from the facts admitted and/or found by the <ORG> and should not open the door to fresh evidence. Held, further, that the question as framed in this case was wide enough to include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the <ORG> case,  1 S.C.R. 185 or <ORG> case,  1 S.C.R. 236. In the absence of anything expressly said in the Order of <ORG> to the contrary, it cannot be held that the direction given would lead inevitably to the admitting of fresh evidence as that has been prohibited by the <ORG> case. <CITATION> ,  1 S.C.R. 249, distinguished. <CITATION> ,  1 S.C.R. 236, <CITATION> ,  18 I.T.R. 407, <CITATION> ,  18 I.T.R. 998, <ORG> <CITATION> ,  21 I.T.R. 82, <CITATION> .  1 S.C.R. 185, <CITATION> . Ltd.,  25 I.T.R. 547 and <CITATION> ,  3 S.C.R. 417, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 30 of 1958. Appeal by special leave from the judgment and order dated March 24, 1955, of <ORG> in Civil Reference No. 3 of 1953.

<NAME>, for the appellants.

<NAME> and <NAME>, for the respondent.

1960. August 17. The Judgment of the Court was delivered by <NAME> J.-This appeal, by special leave of this Court, is against the judgment 'and order dated March 24, 1955, of <ORG> by which <ORG>, purporting to act under s. 66(4) of the Indian Income-tax Act, called for a supplemental statement of the case from <ORG>. The special leave granted by this Court is limited to the question whether <ORG> had jurisdiction in this case to call for the supplemental statement.

The assessee, Messrs. <NAME> & Co., Jaipur, consists of three partners. Two of them are coparceners of a joint Hindu family, and the third is a stranger. They had formed this partnership in June, 1940, for the manufacture and sale of blankets, felts and other woollen articles. A deed of partnership was also executed on March 16, 1944. The assessee entered into contracts with <ORG> for the sup- ply of goods, and in the assessment year 1942-43, Rs. 10,80,658-0-0 and in the assessment year 1943-44, Rs. 17,45,336-0-0 were assessed as its income by <ORG>, Contractor's Circle, New Delhi. The supplies to <ORG> were made for. Jaipur by the assessee, and payment was by cheques which were received at Jaipur and were endorsed in favour of the joint Hindu family, which acted as the assessee's bankers. The contention of the assessee was that this income was received at Jaipur outside the then taxable territories. This contention was not accepted by <ORG>, Delhi. The assessee then applied for a reference to <ORG> under s. 66(1) of the Indian Income-tax Act, and by its order dated December 10, 1952, <ORG> referred the following question for the decision of <ORG>:

" Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to <ORG> were received by the assessee in the taxable territories ? "

The <ORG> had stated in the statement of the case as follows:

"The payment was made by <ORG> by cheques drawn on <ORG>, Bombay Branch. These cheques were received in Jaipur."

It may be pointed out that in the contract of sale between the assessee and <ORG>, the following clause was included to determine the system of payment:

" 21. System of payment:-Unless otherwise agreed between the Purchaser and the Contractor payment for the delivery of the stores will be made by the Chief Auditor, <ORG>, New Delhi, by cheque on a Government treasury in India or on a branch of <ORG> or <ORG> transacting Government business."

In dealing with the Reference, <ORG> passed an order under s. 66(4) of the Income-tax Act observing, "........ it would be necessary for <ORG> to find, inter alia, whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assessee firm given to the <ORG> in the matter ".

<ORG> thereafter remanded the case to the <ORG> for a supplemental statement of the case on the lines indicated. This order is questioned on the authority of the decision of this Court in <CITATION> (1) which, it is claimed, completely covers this case. In that case also, <ORG> had called for a supplemental statement of the case, and it was ruled by this Court that <ORG> had exceeded its jurisdiction.

Before dealing with this question, it is necessary to go back a little, and refer briefly to some cases decided earlier than The New Jehangir Vakil Mills case (1) and <CITATION> (2), on which reliance has been placed in this case. ID (1)  1 S.C.R. 249.

(2) [1960] 1 S.C.R. 236.

<CITATION> (1), <ORG> called for a supplemental statement of the case, but it expressed the view that if a cheque was received by a creditor on <ORG> and he gave the cheque to his bank for collection, the bank must be treated as his agent and that, on the realisation of the amount of the cheque in the taxable territory, the creditor must be regarded as having received it in the taxable territory, even if he was outside it. <CITATION> (2), it was held by <ORG> that where cheques were given to a bank for purposes of collection, the receipt of the money was at the place where the bank on which the cheques were drawn was situated.

These views found further amplification, and were applied in two other cases by the <ORG> high Court. They are <ORG>CITATION> (3 ) and <ORG> v. Commissioner of Income-tax (4). In both these cases, it was held that unless the payee expressly constituted the post office as his agent, the mere posting of the cheque did not constitute the post office the agent of the payee, and that the amount of the cheque was also received at the place where the cheque was received. In <ORG>CITATION> (3), it was held that the mere posting of the cheque in Delhi was not tantamount to the receipt of the cheque in Delhi, because the payee had not requested the <ORG> to send the cheque by post. In <ORG> case (4), <ORG> asked for a supplementary statement of the case from the Tribunal as to whether there was any express request by the assessee that the cheque should be sent by post, and held that as there was no such express request, the receipt of the money was not where the cheque was posted but at the place where the money was received. (1)  18 I.T.R. 407.

(2) [1950] 18 I.T.R. 998.

(3) [1952] 21 I.T.R. 82.

(4) I. Tax Reference No. 10 of 1949 of the Bombay H. C. decided on September 17, 1951.

The last two decisions of <ORG> were reversed by this Court, and it was held that an intimation to the payer " to remit " the amount by cheque was sufficient nomination of the post office as the agent of the payee: vide <CITATION> . (1) and <CITATION> . Ltd. (2). Later, the principle was extended still further by this Court in <ORG> case(3). It was held that where the bills had an endorsement <ORG> should pay the amount due by cheque and the cheques were received in full satisfaction unconditionally, this constituted a sufficient implied request for the purpose of the application of the rule in <ORG> case of this Court. <ORG> case (3) and the New Jehangir Vakil <ORG> case (4) were decided by this Court on the same day. In the latter case, the Department had to deal with a non-resident Company which, at all material times, was situate at Bhavnagar, one of the Indian States. Cheques in payment for supplies to <ORG> were sent from British India to Bhavnagar. The Department contended in the case that though the cheques were received at Bhavnagar, they were, in fact, cashed in British India and until such encashment, income could not be said to have been received but that on encashment in British India, the receipt of income was also in British India. The <ORG> held that the cheques having been received at Bhavnagar the income was also received there. In doing so, the <ORG> followed the Bombay decision in <ORG> case (5). The <ORG>, however, observed that if the Bombay view which was then under appeal to this Court were not upheld, then an enquiry would have to be made as to whether the <ORG>' bankers at Ahmedabad acted as the <ORG>' agents for collecting the amount due on the cheques. The question whether the posting of the cheques from British India to Bhavnagar at the request, express or (1)  1 S.C.R. 185.

(3) [1960] 1 S.C.R. 236.

(2) [1954] 25 I.T.R. 547.

(4) [1960] 1 S.C.R. 249.

(5) [1952] 21 I.T.R. 82.

implied, of the <ORG> or otherwise, made any difference was not considered at any stage before the case reached <ORG>. This was expressly found to be so by this <ORG> in these words:

" The only ground urged by the <ORG> at all material stages was that because the amounts which were received, from the merchants or the Government were received by cheques drawn on banks in British India which were ultimately encashed in British India, the monies could not be said to have been received in Bhavnagar though the cheques were in fact received at Bhavnagar." The reference was held back by the <ORG> till the decision of this Court in <ORG> case (1) and <ORG> case (2). Even after seeing that in those two cases the request for payment by cheques to be sent by post made all the difference, the <ORG> did not frame its statement of the case or the question to include this aspect, because that aspect of the matter was never considered before.' The question referred was thus limited to the legal effect of the receipt of the cheques at Bhavnagar without advertence to the fact whether the cheques were so sent by post at the request, express or implied, of the <ORG>. The question framed was:

" Whether the receipt of the cheques in Bhavnagar amounted to receipt of the sale proceeds in Bhavnagar ? " The question as framed and the statement which accompanied it brought into controversy the only point till then considered by the <ORG> and the taxing authorities. When the case *as heard by it, <ORG> desired to consider it from the angle of the <NAME> Brothers(2) and <ORG> (1) cases. It called for a supplemental statement of the case. In doing so, <ORG> went beyond the ambit of the controversy as it had existed till then and also the statement of the case and the question. <ORG> directed the <ORG> as follows: "On the finding of the <ORG> that all the cheques were received in Bhavnagar, the <ORG> to find (1) [1955] 1 S.C.R. 185.

(2) [1954] 25 I.T.R. 547.

what portion of these cheques were received by post, whether there was any request by the assessee, express or implied, that the amounts which are the subject matter of these cheques should be remitted to Bhavnagar by post." In repelling the objection that such an enquiry was alien to the point decided by the <ORG> and might require fresh evidence, <ORG> justified itself by saying:

" But we cannot shut out the necessary inquiry which even from our own point of view is necessary to be made in order that we should satisfactorily answer the question raised in the Reference. It must not be forgotten that under section 66(4) of the Income-tax Act we have a right independently of the conduct of the parties to direct the <ORG> to state further facts so that we may properly exercise our own advisory jurisdiction." This Court pointed out that <ORG> exceeded its jurisdiction under s. 66(4) of the Indian Income-tax Act. It was observed:

" If the question actually referred does not bring out clearly the real issue between the parties, <ORG> may reframe the question so that the matter actually agitated before the <ORG> may be raised before <ORG>. But s. 66(4) does not enable <ORG> to raise a new question of law which does not arise out of the <ORG>'s order and direct the <ORG> to investigate new or further facts necessary to determine this new question which had not been referred to it under s. 66(1) or s. 66(2) and direct the <ORG> to submit a supplementary statement of the case."

It was also pointed out that the facts admitted and/ or found by the <ORG> could alone be the foundation of the question of law which might be said to arise out of the <ORG>'s order. The case thus set two limits to the jurisdiction of <ORG> under s. 66(4) , and they were that the advisory jurisdiction was confined (a) to the facts on the record and/or found by the <ORG> and (b) the question which  would arise from the <ORG>'s order. It was pointed out by this Court that it was not open to <ORG> to order a fresh enquiry into new facts with a view to amplifying the record and further that it was equally not open to <ORG> to decide a question of law, which did not arise out of the <ORG>'s order. This was illustrated by comparing the question as framed by the <ORG> with the question which <ORG> desired to decide. Whereas the <ORG> had only referred the question:

" Whether the receipt of the cheques at Bhavnagar amounted to receipt of sale proceeds in Bhavnagar ?", what <ORG> intended deciding was: " Whether the posting of the cheques in British India at the request express or implied of the appellant, amounted to receipt of sale proceeds in British India ?" These were two totally different questions, and it was held that <ORG> could not decide a matter which was different from that decided by the <ORG>, nor call for a statement of the case bearing on this new matter. The proposition laid down in the <ORG> case (1), finds support from yet another case of this Court decided very recently. <CITATION> (2), it was observed:

" In our opinion, the objection of the assessee is well-founded. The <ORG> did not address itself to the question whether the Concessions Order applied to the assessee. It decided the question of assessability on the short ground that the income had not arisen in Baroda but in British India. That aspect of the matter has not been touched by <ORG>. The latter has, on the other hand, considered whether the Concessions Order applies to the assessee, a matter not touched by the <ORG>. Thus, though the result is the same so far as the assessment is concerned, the grounds of decision are entirely different.

(1) [1960] 1 S.C.R. 249.

(2) [1960] 3 S.C.R. 417,421.

Section 66 of the Income-tax Act which confers jurisdiction upon <ORG> only permits a reference of a question of law arising out of the order of the <ORG>. It does not confer jurisdiction on <ORG> to decide a different question of law not arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and <ORG> may amplify the question to take in all the approaches. But the question must still be the one which was before the <ORG> and was decided by it. It must not be an entirely different question which the <ORG> never considered." It follows from this that the enquiry in such cases must be to see whether the question decided by the <ORG> admits the consideration of the new point as an integral or even an incidental part thereof. Even so, the supplemental statement which the <ORG> is directed to submit must arise from the facts admitted and/or found by the <ORG>, and should not open the door to fresh evidence. The fact that in <ORG> case (1), <ORG> had asked for a supplemental statement in the same way as in the <ORG> case (2 ), and this Court did not rule out the new matter, cannot help the assessee in the present case, because the jurisdiction of <ORG> was not questioned, as it had been done in the <ORG> case, or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to <ORG> admits the return of the case for a supplemental statement on the lines indicated by <ORG> in the order under appeal. At the very start, one notices a difference in the question of law in this case and the <ORG> case (3), on the one hand, and the question of law in the <ORG> case (2), on the other. In the former two cases, the question is very wide, while in the latter it is extremely narrow. This can be Been by placing the three questions side by side as below :

(1) I. Tax Reference No. 19 of 1949 of the Bombay H. C. decided on September 17, 1951.

(2) [1960] 1 S.C.R. 249.

(3) [1955] 1 S.C.R. 185.

<ORG> case " Whether the receipt of the cheques in Bhav-

nagar amounted to receipt of the sale proceeds in Bhavnagar ?"

<ORG> case " Whether on the facts of the case, income, profits and gains in respect of sales made to <ORG> was received in British India within the meaning of Section 4(1)(a) of the Act ?"

This case "Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to <ORG> were received by the assessee in taxable territories ?"

It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this <ORG> in the <ORG> case (2) or <ORG> case (3). The first limit to the jurisdiction of the High <ORG> as laid down by this <ORG> is thus not exceeded by the High <ORG> in exercising its powers under s. 66(4) of the Income-tax Act. The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable territory when the cheques were posted. (1)  1 S.C.R. 249.

(2) [1955] 1 S.C.R. 185.

(3) [1960] 1 S.C.R. 236.

The next question is whether <ORG> has transgressed the second limitation implicit is s. 66(4) , that is to say, that the question must arise out of the facts admitted and/or found by the <ORG>. <ORG> has observed that, "......... it would be necessary for the Appellate <ORG> to find inter alia whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, bad the assessee-firm given to the <ORG> in that matter."

If the <ORG> has to make a fresh enquiry leading to the admission of fresh evidence on the record, then this direction offends against the ruling of this Court in the <ORG> case (1). If, however, the direction be interpreted to mean that the <ORG> in giving the finding must confine itself to the facts admitted and/or found by it, the direction cannot be described as in excess of the jurisdiction of <ORG>. It would have been better if <ORG> had given directions confined to the record of the case before the <ORG>; but, in the absence of anything expressly to the contrary, we cannot bold that the direction would lead inevitably to the admit- ting of fresh evidence. This, at least, now cannot be done, since the <ORG> case (1), has prohibited the admission of fresh evidence. In our opinion, the present case does not fall within the rule in the <ORG> case (1), and is distinguishable. In the result, the appeal fails, and is dismissed with costs.

Appeal dismissed.

(1) [1960] 1 S.C.R. 249.


JUDGMENT

1. The respondent, plaintiff, seeks to enforce a mortgage executed in his favour on the 15th December 1891. The sum of Rs 1,150 part of the sum advanced by him was, it is found, advanced and actually paid for the amount due under a decree dated the 20th March 1890, obtained by one <NAME> on a mortgage in his favour executed in the year 1887. The appellant was the holder of an intermediate incumbrance, dated the 4th February 1890 upon which also a decree was obtained on the 4th November 1890. Prior to the date of the respondent's mortgage, there were, therefore, two mortgage decrees in existence, the earlier one in favour of <NAME>, the later in favour of the appellant. It is found as a fact that the respondent, when advancing Rs. 1,150 for the discharge of the earlier decree, intended to keep aiive the prior incumbrance, and it has been held that he is to that extent entitled to priority as against the appellant whose incumbrance is intermediate in point of time.

2. On the hearing of the appeal, it was argued before us that inasmuch as <NAME> mortgage had become merged in the decree passed upon it and that decree had been satisfied, the intention of keeping it alive for his own benefit could not properly be imputed to the respondent. Notwithstanding the opinion to the cantrary expressed in the unreported case <CITATION> 7 M.L.J. 18 we are of opinion that the principle on which the respondent bases his claim to priority is not affected by the circumstance that the money advanced by him was advanced in order to pay off a mortgage debt due under a decree. It is sufficient for the respondent to show that there was a subsisting prior incumbrance, that his money was lent for the purpose of discharging it and that it was for his benefit that the prior incumbrance should still be kept alive. It cannot be said that he had any the less a right to keep the incumbrance alive, because it had taken the form of a decree. Toe same thing had happened in the case of <NAME> v. <NAME> 5 Ch. D. 698. Nor can it be said in the present case that the respondent did any thing which could seem to negative an intention on his part to adopt the course which it was obviously for his benefit to adopt.

The appeal is dismissed with costs.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF PUNJAB DATE OF JUDGMENT: 30/04/1952 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN FAZAL ALI, SAIYID CITATION: 1952 AIR 214 1952 SCR 812 CITATOR INFO : R 1959 SC1012 (13) R 1980 SC 628 (11) ACT: Evidence Act  secs. 145, 157--Criminal Proce- dure Code, 1898, secs. 208, 288, 537,540--Criminal trial--Examination of witness not examined before Committing Magistrate--Legality-Statements before Committing Magis- trate--Admissibility--Statement not denied--Use as corrobo- rative evidence--Certificate of magistrate that deposition was read over--Presumption of correctness--Practice of examining Committing Magistrate, impropriety of. HEADNOTE: <ORG> 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. <NAME> v. The Crown (I.L.R. 15 Lah. 331) and Queen Empress v. <NAME> (I.L.R. 14 All. 212)distin- <CITATION> (A.I.R. 1933 All. 690) and <NAME>. <NAME> v. The Crown I.L.R. 17 All. 176) approved. <NAME> v. <NAME> (13 Cr. L.J. 877) 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 . <CITATION>  S.C.R. 729 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. <CITATION>  (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. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 12 of 1952.

Appeal by special leave from the judgment and order dated 4th June, 1951, of <ORG> at Simla (<NAME> and <NAME> JJ.) in Criminal Appeal No. 109 of 1951 arising out of Judgment and order dated 19th March 1951 of <ORG>, Ferozepore, in Sessions Trial No. 18 of 1951. <NAME>, for the appellant.

<NAME>, for the respondent.

1952. April 30. The Judgment of the Court was delivered by <NAME> 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 <NAME> has been convicted of the murder of one <NAME> 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 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 <NAME>, P.W. 2, when the deceased came there about 12-15 p.m. and borrowed Rs. 5 from <NAME> 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 <NAME>, P.W. 4.

The appellant was immediately taken to the local police post about 100 karams distant and the shopkeeper <NAME>, P.W. 2, made the first information report at 12-a7 p.m. within 15 minutes of the occurrence.

The motive is proved by <NAME>, 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 <ORG> and one gave evidence which has been regarded by <ORG> as neu- tral. The remaining two, <NAME> (P.W. 5) and <NAME> (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 <NAME>, P.W. 5, except that the two eye-witnesses who resiled in <ORG> contradict him. But it was argued that the evidence of <NAME> P.W. 6, is viti- ated because he was not examined by the Committing Magis- trate. It was said that makes his evidence in <ORG> inadmissible.

This raises a question which is largely academic in this case because the reason <NAME>, 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 <ORG> 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 <ORG> 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 <NAME> v. The <ORG> (1)but that does no more than consider such an omission as a curable defect. <NAME> 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.

<NAME>

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 <ORG> 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 <CITATION> (1) does not arise here because <ORG> did not refuse to examine <NAME>, 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 <ORG> in <CITATION> (2)and the Full Bench of <ORG> in <NAME> v. The Crown(3) are against the learned counsel's contention.

The decision of the Full Bench of <ORG> in Emperor v. <NAME> (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) (1892) I.L.R. 14 All. 212. (3) (Z936) I.L.R. 17 Lah.

176. (2) A.I.R. 1933 All. 690. (4) (1912) 13 Cr. L,.J. 877.

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 <NAME> 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 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 <ORG> 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 <ORG> 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 <NAME> (<NAME> 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 <NAME> and <NAME> have told nothing but the truth" went on to say"and that <NAME> and <NAME> who made correct statements before the police and before the Committing Magistrate have given false evidence in the trial <ORG> 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 <CITATION> (1).

Even if that be so, it would make no difference because the evidence of <NAME> and <NAME>, 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) [1951] S.C.R. 729.

<NAME>

the result. But as a matter of fact the foundation for this attack is based upon incorrect assumptions. We will deal with <NAME>, 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 <ORG> 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 <NAME> and <NAME> 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 <ORG> 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 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 <ORG> 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 <ORG> 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.

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 . <CITATION> (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 <ORG> 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 <NAME>, 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 <NAME> 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)  S.C.R. 729 at 743.

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 <ORG>. 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. <NAME>, P.W. 2, said that the statement made by him in the committal proceedings was not read over to him and so did <NAME>, 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 <ORG> 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 the person seeking to displace the statutory presumption and if he chooses to rely on the testimony of a witness which the <ORG> is not prepared to believe the matter ends there. The duty of displacing the presumption lies on the person who questions it. The <ORG> 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 <ORG> 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 <CITATION> (1) based on the decision of <ORG> in <CITATION> (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 <ORG> observed in <CITATION> (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. <NAME>, P.W. 2., and <NAME>, 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)  S.C.R. 526.

(2) A.I.R. 1936 P.C. 253 at 258.

(3) A.I.R 1927 P.C. 44 at 45-47.

again, it is no part of a <ORG>'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 <ORG> 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 <ORG> 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.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.