Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ANWAR HOSSAIN TALUKDAR AND ANOTHER-- VS Respondent: PROVINCE OF EAST PAKISTAN AND OTHERS --
P L D 1961 Dacca 155
P L D 1961 Dacca 155
Before Hamoodur Rahman and Murshed, JJ
ANWAR HOSSAIN TALUKDAR AND ANOTHER --Petitioners
versus
PROVINCE OF EAST PAKISTAN AND OTHERS --Respondents
Writ Petitions Nos. 15 and 16 of 1958, decided on 17th March 1958.
(a) Constitution of Pakistan (1956)----
---- Art. 170‑Certiorari, Writ of‑Could be issued to correct errors of law‑Errors of law, when apparent on face of record.
A writ of certiorari will issue not only when an inferior body or tribunal acting in a judicial or a quasi ;judicial capacity has exercised a jurisdiction which it does not possess or acted in flagrant disregard of the principles of natural justice or acted mala fide or on matters collateral to the matters being inquired into, but also to correct such errors of law as may be said to be errors apparent on the face of the record.
The error of law which can be considered to be apparent on the face of record, is not an error which can be pointed out to the superior Court after a long and elaborate argument. A Court of jurisdiction may decide wrongly in law, and yet the superior Court will not interfere with its decision. But the error of law contemplated is an error so patent, so manifest, that the superior Court will not permit the subordinate Court to come to a decision in the face of a clear ignorance or disregard of a provision of law. If a section of statute is clearly misconstrued, or if a provision of the law is over‑looked, or not applied, and that appears from the judgment of the lower Court itself, then the superior Court may interfere by a writ of certiorari. It is, however, not always easy to determine what are errors of law apparent on the face of the record. What is an error apparent on the face of the record cannot be defined with any precision or even exhaustively, and there must always be an element of indefiniteness inherent in its very nature, and each case will have to be determined on its own facts.
G. Veerappa Pillai v. Raman and Raman Ltd. A I R 1952 S C 192 ; T. C. Basappa Nayappa v. T. and another 1954 S C A 620 ; R. v. Northumberland Compensation Appeal Tribunal, Ex party Shaw 1952 All Eng. L R 122 ; Hari Vishnu Kamath v. Syed Ahmad Ishaque and others 1955 S C A 105 ; Batuk K. Vyas v. Surat Municipality A I R 1953 Bom. 133 ; K. P. Mushran v. B. C. Patil and another A I R 1952 Born. 235 ; Mam Baksh v. Rajeshwari Kunwar A I R 1948 All. 213 and Mukhtar Singh v. Board of Revenue, U. P. at Allahabad and another A I R 1954 All. 454 rel.
Assuming that a misjoinder of charges, in a criminal trial, is an error apparent on the face of the record, the onus, in writ proceedings, would be on the petitioner seeking to establish the misjoinder to do so without any elaborate argument on the wording of the accusations themselves.
(b) Constitution of Pakistan (1956)----
---- Art. 170‑Certiorari Misjoinder of charges in criminal trial‑Not a question relating to jurisdiction of Court but only a defect in procedure of trial‑No ground for issue of writ‑Criminal Procedure Code (V of 1898), S. 234.
A question of misjoinder of charges is not a question relating to the jurisdiction of the Court. A misjoinder of charges is a defect in the mode of the trial, in the procedure to be followed and this does not render the trial itself without jurisdic tion, for the trial Court must decide whether the person accused can or cannot be tried jointly in view of the accusations levelled in that particular case. A mere non‑compliance with the rules of procedure will not amount to an illegal exercise of jurisdiction which‑can be a ground for grant of writ of certiorari.
Janardhan Reddy and others v. The State of Hyderabad and others A I R 1951 S C 2 17 rel.
(c) Criminal Procedure Code (V of 1898)----
---- S. 164‑Statement recorded under section‑Not substantive evidence‑Can be used for corroborating or contradicting person making it without calling. Magistrate, recording it, as witness.
A statement of a witness recorded under section 164 of the Criminal Procedure Code, 1898, is not substantive evidence, and can like any other previous statement be used only for corroborating or contradicting him, and for this purpose, the statement or any portion of it can be proved like any other previous statement and it is not imperative that the Magistrate who recorded the statement should be called as a witness to prove the statement.
(d) Constitution of Pakistan (1956)------
----- Art. 170‑Writ proceed ings‑High Court cannot substitute own opinion about sufficiency or otherwise of evidence on which conviction is based‑Decision of inferior Tribunal based on no evidence at all‑Certiorari lies.
However insufficient the evidence might be on which conviction of the accused is based, it is for the trial Court to consider the sufficiency or otherwise thereof and the High Court cannot substitute its own opinion for that of the trying Magistrate or hold that it is an error which can be said to be an error apparent on the face of the record. However a certiorari will lie if the decision of the inferior Tribunal is based on no evidence at all.
(e) Constitution of Pakistan (1956)-----
---- Art. 170‑Other remedy pending but legally incompetent‑Whether writ lies (Quaere).
Whether where appeal or revision has already been filed, application can still be made for writ of certiorari or any other writ of like nature on ground that since the appeal or revision was incompetent, it was not such alternative remedy as would debar petitioner from praying for writ.
D. C. Roy and S. K. Basu for Petitioner in Writ Petition No. 15 of 1958.
S. K. Basu for Petitioner in Writ Petition No. 16 of 1958.
B. A. Siddiky Advocate‑General with K. M. Subhan for Respondents.
JUDGMENT
H. RAHMAN, J.‑There are two applications under Article 170 of the Constitution of the Islamic Republic of Pakistan. In both these matters rules were issued on the 3rd of February 1958, calling upon the respondents to show cause why a Writ of Certiorari or a Writ of like nature should not issue, and the proceedings should not be quashed by this Court.
2. The petitioner in Writ Petition No. 15 of 1958 is a member of Ward No. C of Taktabunia Union Board in the District of Bakarganj, and the petitioner in Writ Petition No. 16 of 1958 is his son‑in‑law and the foodgrains dealer of the said Ward of the said Union. Both these petitioners together with the President of the said Union Board, namely, one Abdul Hafez Talukdar, were tried by a Special Magistrate, empowered under section 7 of Ordinance XV of 1956, namely the East Pakistan food (Special Court's) Ordinance, 1956, under the summary procedure in respect of a charge under section 6 of the said Ordinance for contravention of the provisions of section 3 of the East Pakistan Control of Essential Commodities Ordinance, 1956, being East Pakistan Ordinance X of 1956. The said Special Magistrate found them guilty of the said offence, and convicted all three of them, and sentenced the petitioner in Writ Petition No. 15 of 1958 to undergo rigorous imprisonment for four months, and to pay a fine of Rs. 300 or, in default, to suffer further rigorous imprisonment for one month. The petitioner in Writ Petition No. 16 of 1958 was sentenced to suffer rigorous imprisonment for three months, and to pay a fine of Rs. 200 or, in default, suffer further rigorous imprisonment for one month.
3. The allegations upon which they were so tried and convicted were that the two petitioners before us and the said President of Union Board had jointly and acting in collusion with each other misappropriated 15 maunds and 35 seers of paddy, between the period 27th May 1956 to 20th of June 1956, by drawing the same on some eleven ration cards purporting to have been issued in respect of eleven residents of the said Union, but which were, in fact, not so issued or delivered to them, but were actually taken delivery of by the two petitioners before us.
4. It is said that sometime towards the end of July 1956, the Army Additional Sub‑divisional Officer, Patuakhali, on receipt of secret information deputed an Adjutant of Ansars to go to the house of the said President, Union Board, Abdul Hafez Talukdar. The said Adjutant accompanied by a junior commissoner officer,. Md. Rafi, a Naik and an Ansar went to the house of the said President on the 28th of July 1956, when he was found working in his office. The said Adjutant then started checking the ration card registers, etc., in connection with the distribution of foodgrains in the area, which was an area to which the modified rationing scheme applied. Whilst the records and the ration cards were being removed to another room for the purpose of such examination, the junior commissioned officer, Md. Rafi, noticed that the said President put some ration cards into his pocket whilst coming out of the said office room. On seeing this he immediately caught hold of him and produced him before the Adjutant of Ansars, and reported the circumstances in which he had caught him, and seized the said ration cards. On verification of the said ration cards, it was found that 15 maunds and 35 seers of paddy were actually drawn in respect of the said ration cards, but from the records it transpired that these eleven ration cards were taken delivery of by the two petitioners before us, and not by the persons in whose names the cards purported to have been issued. Further enquiry revealed that none of the said purported holders of the said ration cards ever actually received the said ration cards or drew any paddy thereon. The adjutant concerned then sent a report to the Additional Sub‑divisional Officer, Army, for the prosecution of the two `petitioners before us, as also the said President of the Union Board. He also had some of the persons in whose names the ration cards purported to have been issued, examined by a Magistrate oP Patuakhali under section 164 of the Code of Criminal Procedure.
5. As against this, the defence of the petitioner in Writ Petition No. 15 of 1958 was that he received delivery of nine out of the said eleven ration cards, and made over the same to the respective persons in whose names the said ration cards were issued, and that the holders of the said cards themselves drew rations on their own cards. The defence of the petitioner in Writ Petition No. 16 of 1958 was that he as a foodgrain dealer, simply distributed the rations as against the ration cards, and knew nothing else. Now, we are not concerned at this stage with the defence of the said President of the Union Board.
6. Upon these allegations, the accusation that was made against these persons, and the substance whereof was explained to them under section 242 of the Code of Criminal Procedure, was to the following effect
"Accused No. 1 Abdul Hafez Talukdar and ‑No. 2 Anwar Hussain Talukdar being, respectively, President and member of Taktabunia Union conjointly misappropriated Government paddy to the extent of 15 maunds and 35 seers between the period 27th May 1956 to 20th June 1956, by the ration cards of the villagers, viz., Muhammad Ali and ten others without distributing the ration cards to the real owners, which ration cards were issued from the Union Board Office, Taktabunia, in collusion with dealer accused No. 3 Nizamuddin, and thereby contravened provisions of section 3 of Ordinance X of 1956, liable under section 6 of Ordinance XV of 1956."
7. To establish this case, the prosecution examined some eleven witnesses of whom six were persons in whose names the ration cards were purported to have been issued. Of these, at least four were declared hostile by the prosecution, and cross -examined as they were alleged to have resiled from the statements made by them earlier before a Magistrate under section 164 of the Code of Criminal Procedure. Nevertheless, on a consideration of the evidence, the Special Magistrate trying the case, found that the case had been well proved against the three accused persons, and convicted them as already stated.
8. As against this conviction all three jointly preferred an appeal before the learned Sessions Judge of Bakarganj. The learned Sessions Judge entertained the appeal, heard it, and allowed the appeal of the President Abdul Hafez Talukalar, gave him the benefit of doubt and acquitted him, but he dismissed the appeals of the two petitioners before us. As against this order of dismissal, the two petitioners before us came up in revision to this Court, and obtained two Rules, being Criminal Revisions Nos. 210 and 211 of 1957. Both these rules came up for hearing on the 7th of January 1958, when a Division Bench of this Court, to which one of us was a party, held that the learned Sessions Judge had no jurisdiction to hear the appeal, as no right of appeal had been expressly conferred by the said Ordinance XV of 1956, but, nevertheless, did not interfere with that appellate judgment of the learned Sessions Judge, as the view was taken that the powers of revision being discretionary there was no necessity for interfering with that appellate order, since it was felt that substantial justice had been done in the case ; even though it was an order without jurisdiction, It was further observed in that judgment that the discharge of the Rules would not prevent the petitioners from seeking any other remedy which they may have under the law, and may be advised to take. Hence, the petitioners came up with these applications to this Court, and again obtained these Rules on the 3rd of February 1958.
9. Since the two petitioners were jointly tried by the Special Magistrate, their cases were disposed of by the same judgment, and they jointly preferred an appeal against that judgment before the learned Sessions Judge, these two Rules have also been heard together, as apart from one argument advanced on behalf of the petitioner in Writ Petition No 16 of 1958 the other arguments advanced in support of these Rules are common, and have really been urged by Mr. Roy appearing on behalf of the petitioner in Writ Petition No. 15 of 1958. Mr. S. K. Basu appearing for the petitioner in Writ Petition No 16 of 1958 has merely adopted the said arguments, and contended himself by placing only his special point.
10. Mr. Roy has firstly contended that even though in the present case the petitioners did, in fact, prefer an appeal and then also came up in revision before this Court, that does not disentitle them from asking for a Writ of this nature, for, in effect, since the appeal before the learned Sessions Judge was itself incompetent, it was not an appeal in the eye of the law, and could not thus be treated as an alternative remedy.
11. As we have heard both these petitions on their merits, and propose to dispose of them on merits, we do not consider it necessary to express any opinion on this particular aspect of the question as to whether in such circumstances where an appeal or a revision has already been filed, an application can still be made for a writ of certiorari or any other writ of a like nature on the ground that since the appeal was an incompetent appeal, it was not such an alternative remedy as would debar the petitioners from praying for this Writ.
12. Again, although a large number of grounds have been taken in the petition, Mr. Roy has confined his arguments to two grounds only. His first contention is that in so far as the substance of the charge, as, explained to the accused and set out in the order‑sheet of the Special Magistrate, discloses that the amount of paddy said to have been misappropriated was in respect of some eleven ration cards, the petitioners were, in effect, charged with having committed, at least, eleven distinct offences, namely, an offence in respect of each ration card as a separate and distinct offence, and, as such, the joint trial of as many as eleven offences offended against the provisions of subsection (1) of section 234 of the Code of Criminal Procedure. It was further more contended by Mr. Roy that the charge also suffered from a further defect, namely, that it set out a gross quantity of paddy said to have been misappropriated between certain dates namely, the 27th of May 1956, and the 20th of June 1956, without specifying the exact quantities misappropriated on each specific date within that period. Since the misappropriation alleged was in respect of commodities, namely, paddy and not money, such lumping up was not permissible under the law, for, it may well be that by so doing .again more than three offences of misappropri ation had been joined together in contravention of subsection (1) of section 234 of the Code of Criminal Procedure. Both these points, therefore, relate to a question of misjoinder of offences.
13. Thirdly, Mr. Roy contends that there has also been in the present case a misjoinder of persons, for the two petitioners before us could not have been jointly tried in respect of offences of misappropriation of foodgrains if they were committed in respect of different sets of ration cards on different dates.
14. These questions of misjoinder of persons and offences were, according to Mr. Roy, questions which affected the jurisdiction of the Court, namely, that if there was, in fact, a misjoinder of persons and offences, then the Court had no jurisdiction to try the said accused persons in the manner that it had done. Hence, according to the now well‑accepted scope of a writ of certiorari, Mr. Roy urged, that the order of conviction must be quashed as one having been made by the Special Magistrate in excess; of his jurisdiction. Alternatively, Mr. Roy argued that even if this was not a question affecting the jurisdiction of the Court, it was, at least an error apparent on the face of the record which also was a proper ground for invoking the writ of certiorari.
15. In support of this contention, Mr. Roy has relied upon a number of decisions of the Supreme Court of India with regard to the nature and the scope of writ of certiorari. The first of these is in the case of G. Veerappa Pillai v. Raman and Raman Ltd. (AIR 1952 S C 192 ), Chandrasekhara Aiyar, J. in delivering the judgment of the Supreme Court observed that
"Such Writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the Subordinate Tribunals or bodies of officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice."
The next is in the case of T. C. Basappa Nayappa v. T. and another (1954 S C A 620), where B. K. Mukherjea, J. after reviewing a large number of English and other decisions of Indian Courts laid down the fundamental principles, which according to him should regulate the exercise of the jurisdiction in the matter of granting such writs of certiorari. One of the said principles, according to his Lordship was, that :
"An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari, but not a mere wrong decision."
In support of this principle, his Lordship himself relied upon a decision of the Court of Appeal in England in the case of R. v. Northumberland Compensation Appeal Tribunal, Ex‑party Show (1952 All Eng. L R 122), and quoted with approval a portion from the judgment of Morris, L. J., in the said case, where the learned Lord Justice came to the conclusion upon the examination of the authorities in England that although a writ of "Certiorari will not issue as the cloak of appeal in disguise," yet, "it exists to correct error of law where revealed on the face of an order or decision or irregularity, absence of, or excess of, jurisdiction where shown."
16. In the same case, however, Denning, L. J. observed
"The Court of King's Bench has an inherent jurisdiction to control all inferior Tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior Tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the Tribunal, which, on the face of it, offends against the law."
Then again at another place the same learned Lord Justice opined :
"Of recent years the scope of certiorari seems to have been somewhat forgotten. It has been supposed to be confined to the correction of excess of jurisdiction, and not to extend to the correction of errors of law, and several learned Judges have said as much. But the Lord Chief Justice has, in the present case, restored certiorari to its rightful position, and shown that it can be used to correct errors of law which appear on the face of the record even though they do not go to jurisdiction. I have looked into the history of the matter, and find that the old cases fully support all that the Lord Chief Justice says. Until about one hundred years ago, certiorari was regularly used to correct errors of law on the face of the record. It is only within the last century that it has fallen into disuse, and that is only because there has, until recently, been little occasion for its exercise. Now, with the advent of many new Tribunals, and the plain need for supervision over them, recourse must once again be had to this well‑tried means of control."
Then his Lordship went on to examine earlier cases to show how the writ of certiorari had been issued even for correction of errors of law, and after such examination came to the conclusion that even an error admitted openly in the face of the Court can be corrected by certiorari as well as an error that appears on the face of the record.
17. The last decision relied upon by Mr. Roy is in the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque and others (1955 S C A 105). In this case, too, Venkatarama Ayyar, J. after an exhaustive review of a very large number of English and Indian authorities, came to the conclusion that
"It may, therefore, be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter how ever, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsels on either side were unable to suggest any clear‑cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the strength of certain observations of Chagla, C. J., in Batuk K. Vyas v. Surat Municipality A I R 1953 Bom. 133, that no error could be said to be apparent on the face of the record if it was not self‑evident, and if it requires an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self‑evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."
18. Venkatarama Ayyar, J. however, did not notice another earlier judgment of Chief Justice Chagla where an attempt had been made by the learned Chief Justice to set out more fully the circumstances in which an error may be said to be apparent on the face of the record. This was in the case of K. P. Mushran v. B. C. Patil and another (A I R 1952 Bom. 235), where dealing with a writ of certiorari, and accepting that a writ of certiorari, may issue to correct an error of law apparent on the face of the record, he observed that :
"The error of law which can be considered to be apparent on the face of the record, is not an error which can be pointed out to the superior Court after a long and elaborate argument. It has been often said that a Court of jurisdiction may decide wrongly in law, and yet the superior Court will not interfere with its decision. But the error of law contemplated is an error so patent, so manifest, that the superior Court will not permit the subordinate Court to come to decision in the face of a clear ignorance or disregard of a provision…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.