P L D 1960 Dacca 805 (PLP)

RAHMAN, J.‑This is an application under Article 170 of the Constitution of the Islamic Republic of Pakistan. In this matter, a Rule nisi was issued on the 18th February, 1958, calling upon the respondents to show cause why a writ of certiorari or a writ of like nature should not issue, and why the records of the case should not be brought up before this Court to be dealt with according to law, and the proceedings quashed, if necessary.

2. The petitioner before us is a resident of village Bishnadi within the jurisdiction of the Chandpur police‑station, and holds several ration cards as the head of his family consisting, amongst others, of his mother, one Purnabashi.

3. The case against him was that although his aforesaid mother Purnabashi had left for India on the 8th August 1956, and remained outside Pakistan until the 14th March, 1957, the petitioner as the head of the family drew rations on the ration card of his said mother for thirty weeks, during her absence from the said ration area, and thereby committed an offence punish able under section 6 (1) of the East Pakistan Act I of 1956. On these allegations, he was tried by a Special Magistrate at Chandpur, found guilty of the said offence, convicted and sentenced to suffer rigorous imprisonment for six months, as also to pay a fine of Rs. 500 or, in default, to suffer rigorous imprisonment for six months more.

4. Against the said conviction, the petitioner preferred an appeal before the learned Sessions Judge of Tippera, but the learned Sessions Judge, following a decision of this Court in Criminal Revision Case No. 96 of 1957 Hari Mea v. The State (P L D 1958 Dacca 333), dismissed the appeal holding that it was not maintain able. Hence the petitioner has now made this application, and obtained this Rule for a writ of certiorari.

5. The main ground upon which this writ is invoked is that in so far as there was an apparent misjoinder of charges manifest upon the statement of the accusation, explained to the petitioner under section 242 of the Code of Criminal Procedure, and set out in the summary sheet of the Magistrate, there was an error apparent on the face of the record which has caused manifest injustice to the petitioner.

6. It is also contended that a trial vitiated by such. mis joinder also amounts to no trial or a trial without jurisdiction. But, in view of our decision in Writ Petitions Nos. 15 and 16 of 1958 Anwar Hossain Talukdar v. The Province of East Pakistan and others, dated the 17th March, 1958, this point is not pressed. It is, however, urged that, in the present case, at any rate, the misjoinder is manifest upon a plain 'reading of the accusation itself, and, therefore, it is an, error apparent on the face of the record being a clear non‑observance of a mandatory provision of the Code of Criminal Procedure.

7. The accusation as set out in the summary sheet of the Magistrate who tried the case under the summary procedure is as follows:-- "Being the head of the family within Chandpur Rationing Area obtained rationed articles by the use of a ration card issued in the name of Purnabashi Kundu, your mother, for 30 weeks from 8th August, 1956, to 14th March, 1957, and your said mother was not a resident within the Rationing Area during the entire period, in contravention of clause 9 (1) of the E. B. Urban Area Rationing Regulation, 1956, and thereby committed an offence under section 6 (1) of Act I of 1956."

8. It is urged on behalf of the petitioner that clearly on the face of this accusation an infringement of the rationing order in respect of one single ration card is alleged on thirty different occasions, namely, each of the said thirty weeks between the 8th August, 1956, and the 14th March, 1957, and, as such, clearly this offends against the provisions of section 234 of the Code of Criminal Procedure, as thirty different offences of the same kind committed within the period of one year have been charged and tried together at one trial.

9. It must be observed that the accusation clearly and manifestly without any argument discloses that there has been a most patent misjoinder of charges in the present case by such illegal joining together of thirty different offences. The learned Advocate‑General appearing on behalf of the respondents also had to concede that there is a clear and manifest misjoinder in the present case.

10. The question, however, is, whether such misjoinder is such an error as can be considered to be an error apparent on the face of the record which would entitle the petitioner to ask for a writ of certiorari.

11. In our decision in Writ Petitions Nos. 15 and 16 of 1958 we have already given our reasons for holding that an error in the decision or in the determination itself may be a ground for issuing a writ of certiorari if it is a manifest error apparent on the face of the proceedings.

12. It is now for us to decide whether a misjoinder, when so manifest, as in the present case, is such an error apparent on the face of the record. Although it is true that no exact or exhaustive definition of what is 'an error apparent on the face of the record is possible in the very nature of things, but never theless as far as can be gathered from decided cases it appears that an error of law which does not take much argument or investigation to discover but is manifest upon the face of the impugned order itself is generally a satisfactory test to adopt, for determining as to what is an error apparent on the face of the record.

13. In this connection, however, we would like to refer to two decisions of the Indian Courts which, in our view, give a more exhaustive indication of the nature of the errors which may be considered to be errors of law apparent on the record, and which would entitle us to quash proceedings by a writ of certiorari. The first is in the case of K. P. Mushran v. B. C. Patil and another (A I R 1952.Bom. 235), where Chagla, C. J., with whom Bhagwati, J., concurred, observed, when dealing with an application for a writ of certiorari, that ordinarily the Courts may issue a writ of certiorari to correct the decisions of the subordinate Courts and Tribunals even when such decisions suffer from an error of law provided that the error is apparent on the face of the record. But with regard to what kinds of errors may be considered sufficient for this purpose, the learned Chief Justice laid down the following proposition : "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 a statute is clearly misconstrued, or if a provision of the law is overlooked 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." Again, in the case of T. C. Basappa v. T. Nagappa and another (AIR1954SC140), B. K. Mukherjea, J., who delivered the judgment of the Supreme Court of India in that case pointed out that an error in the decision or determina tion which may also be amenable to a writ of certiorari must be a manifest error apparent on the face of the proceedings, for example, when it is based on clear ignorance or disregard of the provisions of law.

14. From the passages quoted above, it will be observed that a manifest disregard or non‑application of a provision of law, which is discovered upon a plain reading of the order of the n Court below, does come within the category of an error apparent on the face of the record for the correction of which a writ of certiorari may legitimately be issued.

15. Thus, in the present case, as we have already discussed, upon a plain reading of the accusation set out in the summary sheet, it is patent that there is a clear and manifest misjoinder of charges, namely, a disregard of the mandatory provisions of sections 233 and 234 of the Code of Criminal Procedure, and, therefore, there is, in our opinion, an error apparent on the face of the record.

16. For these reasons, we make this Rule absolute, and quash the proceedings before the learned Special Magistrate in S. C. Case No. 50 of 1957. We have no other jurisdiction in a proceeding of this nature to give any further direction. All that we can do is to put an end to the proceeding by quashing it.

17. In this matter, since the learned Advocate‑General conceded that there was a clear misjoinder of charges on the face of the summary sheet, we make , no order for costs in this application. MURSHED, J.‑I agree. K. B. A. Rule made absolute.