P L D 1961 Dacca 155 (PLP)

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 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."

19. It will thus be observed from the authorities relied upon by the learned Advocate that it is now well‑settled that writ of certiorari will issue not only when an inferior body or Tribunal acting in a judicial or at least 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 matter being enquired into, but also to correct such errors of law as may be said to be errors apparent on the face of the record. As pointed out in the cases referred to earlier it is not, however, always easy to determine what are errors of law apparent on the face of the record. In the judgment of Chagla, C. J. just quoted above, his Lordship has attempted to set out some of the circumstances in which an error may be said to be an error apparent on the face of the record. It seems to indicate that the error must be something morn than erroneous decision in law, as for example, omitting to take into account a relevant provision of law applicable to the case or applying a provision of law clearly not applicable to the case.

20. In this connection we may also refer a Division Bench decision of the Allahabad High Court in the case of Mam Baksh v. Rajeshwari Kunwar (A I R 1948 All. 213), cited by the learned Advocate‑General where in attempting to discover what are mistakes or errors on the face of the record within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure, Walli Ullah, J. held that "Even an erroneous view of the law on a debatable point or a wrong exposition of the law, when it (the law) is not definite or clearly ascertained would, be no mistake or error apparent upon the face of the record in an application for review. An error cannot be characterised as apparent, i.e., patent upon the face of the record if e.g., it is one which would be apparent only to a person who has made the necessary research into the case law. It is an error which can be seen at once by a mere perusal of the record without reference to any other matter, and without the aid of any argument or reference to authorities in order to carry conviction. Thus a failure to consider a precedent bearing upon the case is not a mistake or error apparent upon the face of the record, but is really the discovery of a new and important matter by the party who ought to have brought the precedent in question to the notice of the Court."

21. The same view was taken by another learned Judge of the Allahabad High Court sitting singly in the case of Mukhtar Singh v. Board of Revenue, U. P. at Allahabad and another (A I R 1954 All. 454), when dealing with a writ of certiorari. The learned Judge, namely, Bhargava, J. there held that : "An incorrect decision of such a controversial point cannot be an error of law apparent on the face of the record. An error, even if it is found to be such after argument, as to the incorrect application of any law or as to its incorrect interpre tation is not the type of error apparent on the face of the record which has been considered a ground for exercising the powers of issuing writ of certiorari."

22. It is needless, however, to multiply cases, on this point for, as observed by Venkatarama Ayyar, J. in the case of Hari Vishnu Kamath, what is 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.

23. For our present purposes, however, it will be sufficient to say that we find difficult to accept Mr. Roy's first contention that a question of misjoinder of charges is a question relating to the jurisdiction of the Court, and that wherever there has been such misjoinder of charges, we must hold that the entire trial is coram non judice. In our opinion, a misjoinder of charges is a defect in the mode of the trial, namely, in the procedure to be followed for the trial, and this does not render the trial itself without jurisdiction, for the trial Court must inevitably, whenever this question arises, decide whether the person accused can or cannot be tried jointly in view of the accusations levelled in that particular case. Thus it has furthermore the jurisdiction to decide rightly or wrongly. A mere non‑compliance, therefore, with the rules of procedure will not, in our opinion, amount to an illegal exercise of jurisdiction. In taking this view we find support also from another well‑considered and well‑reasoned decision of the Supreme Court of India in the case of Janardhan Reddy and others v. The State of Hyderabad and others (AIR1951SC217), where Fazal Ali, J. delivering the judgment of the Court clearly held that the question of misjoinder of charges was not a question relating to the jurisdiction of the Court. The point was expressly raised in that case, and his Lordship, after an exhaustive review of a large number of authorities, came to the conclusion that the question of misjoinder of charges was not a question of want of jurisdiction of the Court.

24. Mr. Roy, however, has referred to a passage in that judgment and sought to distinguish that decision. The passage referred to is as follows : "But, for the purposes of the present case, it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial Court acted without jurisdiction. There is a basic difference between want of jurisdiction, and an illegal or irregular exercise of jurisdiction, and our attention has not been drawn to any authority in which mere non‑compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. In either case, the defect, if any, can according to the procedure established by law be corrected only by a Court of appeal or revision. Here, the appellate Court which was competent to deal with the matter, has pronounced its judgment against the petitioners and the matter having been finally decided is not one to be reopened in a proceeding under Article 32 of the Constitution." From this, it is argued that his Lordship was not really called upon to decide this question, for there a competent appellate Court having already pronounced judgment to the effect that there was no misjoinder the question could not be reopened by way of the writ procedure. With due respect, however, to the learned Advocate's argument we must observe that he seems to forget that we are not concerned with the actual decision in that case, for, it in no way binds us. We are concerned more with the judicial reasonings therein given, and the principles of law discussed therein, and if the same appeal to us as being based upon sound logic and correct legal principles, then we are entitled to adopt them as part of our own reasonings. As we read this judgment, however, it seems to us that his Lordship Fazal Ali, J. did clearly hold that the defect of misjoinder is a defect in the procedure of the trial only, and that this does not entitle one to say that the Court acted without jurisdiction.

25. With regard to the next contention as to whether a question of misjoinder may or may not amount to an error apparent on the face of the record, we are in the present applications relieved from considering this question, for, upon an examination of the accusation made in this case, which we have earlier set out, it appears to us that the argument of the learned Advocate appearing in support of the Rules, is without any foundation. There is nothing in the accusation to show that the rationed commodity was drawn separately in respect of each of the said eleven ration cards. On the other hand, the accusation is that the petitioner in Writ Petition No. 15 of 1958 conjointly with the acquitted accused misappropriated Government paddy by the said ration cards, which had been issued from the Union Board's office in collusion with the petitioner in Writ Petition No. 16 of 1958. We find it difficult to appreciate why, if a person takes a bundle of fictitious ration cards or ration cards not belonging to him, and at one and at the same time draws the entire rations permitted to be withdrawn in respect of the said ration cards, he should be said to commit a separate offence in respect of each individual ration card, and not one offence of misappropriation of the total amount of rations drawn on the said cards altogether. We are also not impressed by the argument that as only the gross quantity misappropriated between a certain period has been mentioned, the charge is necessarily defective or that it is in contravention of the provisions of section 234 of the Code of Criminal Procedure, for, if we are to decide this question on the basis of the accusations made, the accusations in this case do not indicate that the possibility of the entire gross commodity having been withdrawn at one and at the same time is ruled out upon the said accusations. Incidentally, we might mention here that on an examination of the said ration cards, it appears that rations thereon were drawn only on two occasions. On this basis, too, therefore, there can be no justifica tion for the argument that more than three offences had been combined together.

26. Again even assuming that a misjoinder of charges is an error apparent on the face of the record, we venture to think that in these proceedings the ouns would be on the petitioners seeking to establish the misjoinder to do so, without any elaborate argument on‑the wording of the accusations themselves. In the present case, to accept the arguments of Mr. Roy, one would have not only to examine the ration cards, but also to go into the evidence in this case, and even then the question as to whether there has or has not been a misjoinder would not be one which would be free from doubt. On the face of the accusations however, we for ourselves find difficulty in holding that it is in any way apparent that there has been a misjoinder of offences.

27. Again, with regard to the question of misjoinder of persons, it has to be mentioned that the accusation on the face of it shows that there was an accusation of a collusion between the petitioner in Writ Petition No. 15 of 1958 and petitioner in Writ. Petition No. 16 of 1958. If this accusation of collusion is tantamount to an accusation of a conspiracy, then there can be no doubt that the accused persons could validly be jointly tried together. Mr. Roy, however, argues that in so far as this is not a case of accusation in respect of any offence under the Penal Code, but only in respect of contravention of the provisions of Ordinance X of 1956, there could be no charge for conspiracy, for, under the said Ordinance only attempts and abetments were made offences. This argument, however, appears to us to be rather strained, for, if abetment is an offence under the Ordinance, then it is difficult to appreciate why it does not comprise within it a conspiracy also. A person under section 107 of the Pakistan Penal Code is said to abet the doing of a thing where he also engages with one or more other person or persons in any conspiracy for the doing of the thing. In the circumstances, since a person engaging in a conspiracy also abets, and an abetment is an offence under the said Ordinance, it seem to us that it includes within it and extends also to abetment by conspiracy.

28. It is next argued that the word `collusion' in the accusation does not sufficiently import the idea of a conspiracy. We are not impressed by this argument, for, even according to its ordinary meaning, `collusion' is synonymous with conspiracy, and the accusation, therefore, in the present case on the face of it sufficiently alleges a conspiracy between the two petitioners before us, who are father‑in‑law and son‑in‑law, and, as such, in our opinion, their joint trial was in no way bad. In any event, even if this is merely an accusation of an abetment then also the joint trial was permissible under clause (b) of section 239 of the Code of Criminal Procedure.

29. In this view of the matter, since there is, according to us, no misjoinder of persons or offences in the present case, no useful purpose will be served in going further into the question as to whether such misjoinder could also amount to an error apparent on the face of the record or not.

30. The next ground urged by the learned Advocate must, in our opinion, also fail. It was the contention of the learned Advocate that in this case although the Magistrate who recorded statements of certain witnesses under section 164 of the Code of Criminal Procedure, had not been examined, the record of the statements so recorded had been used and relied upon by the Special Magistrate. A statement of a witness recorded under section 164 of the Code of the Criminal Procedure, as has repeatedly been held, is not substantive evidence, and can like any other previous statement of that witness be used only for corroborating or contradicting him, and for this purpose, the statement or any portion of it could in our opinion, have been proved like any other previous statement, and it was not imperative that the Magistrate who recorded the statement should have been called. The. statement when so recorded is required by the very language of section 164, subsection (2) to be forwarded to the Magistrate by whom the case is to be enquired into or tried. This was done in the present case, and we find on an examination of the substance of the depositions recorded by the Special Magistrate that the witnesses who were declared hostile in this case, were actually asked the question if they hid made any statement before a Magistrate. Some admitted that they had made such statement whilst others did not. So far as the witnesses, who admitted having made such statements are concerned, their statements were duly proved, and they could thereafter be duly confronted with that statement or any particular portion thereof, if it was desired to contradict them. It does not appear, however, that any witness was, in fact, asked any question as to whether he did or did not or make any particular kind of statement before the Magistrate who recorded the statement under section 164 of the Code of Criminal Procedure, nor does the judgment of the learned Special Magistrate reveal that the Magistrate in any way utilised any portion of the contents of the said statements under section 164 for the purposes of this case. The only passage in the judgment of the Special Magistrate to which any objection could be taken by Mr. Roy is in these terms "The Adjutant of Ansars in order to guard against gaining over of the witnesses who are quite poor and illiterate arranged to produce them in Court for their statement under section 164, Cr. P. C. to be recorded. It transpires from record that statements of witnesses Akram Ali, Arabjan Bibi, Elem Gazi, Ramzan Ali, Muhammad Ali and Nitai Sit were recorded under section 164, Cr. P. C. by Magistrate here at Patuakhali. In course of trial, witnesses Arabjan Bibi (P. W. 2), Akrarn Ali (P. W. 3), Elem Gazi (P. W. 4), Muhammad Ali (P. W. 5), Nitai Sit (P. W. 6), and Ramzan (P. W. 7), have been examined in this case. Of them P. Ws. Arabjan Bibi and Akram Ali corroborated the prosecution version that they did not get any ration card, and that on having approached several times both to M. U. B. and P. U. B. none gave them ration card, while they saw other people drawing rations." The fact that the Adjutant arranged for the statements to be recorded under section 164 of Code of Criminal Procedure is a fact taken from the oral testimony of the said Adjutant, who was P. W. 1 in this case, and is not derived from the statements themselves.

31. Again, the fact that those statements were recorded, was apparent from the record of the Special Magistrate itself as we have already pointed out, under subsection (2) of section 164 such statements had to be forwarded by the recording Magistrate to the enquiring Magistrate ; but the passage quoted above does not show that the contents of the said statements were in any way utilised by the Special Magistrate. The argument, therefore, that the statements recorded under section 164 were illegally admitted in this case and relied upon, appears to us to be without any foundations whatsoever. The judgment as we have already indicated above, does not disclose that the contents of the said statements were in any way relied upon. An attempt was made also to show that, if the learned Special Magistrate did not do so, the learned Sessions Judge in appeal did so, but since we are not concerned in the present Rules with the judgment in appeal of the learned Sessions Judge, we are not called upon to examine what the learned Sessions Judge did do or did not do, for another Division Bench of this Court has already held that the appeal was incompetent, and the learned Judge had no jurisdiction to entertain or hear that appeal. Both the grounds taken, therefore, by Mr. Roy for establishing at least an error apparent on the face of the record, fail for the reasons we have given above.

32. It remains for us now only to notice the other argument advanced by Mr. Basu that at any rate, so far as his client, namely, the petitioner in Writ Petition No. 16 of 1958, is concerned he has been convicted only upon hearsay evidence and, therefore, his conviction must also be quashed as that is an error apparent on the face of the record. This argument, again, is devoid of any foundation. It appears that at least two witnesses, namely, P. Ws. 2 and 3 gave evidence in support of the prosecution case. In addition to this, the documentary evidence exhibited in this case also showed that the petitioner in Writ Petition No. 16, did take delivery of some of the said eleven ration cards himself, and that rations were, in fact, drawn on the said ration cards from the grain‑shop of which he was the dealer. In these circumstances, it cannot be said that his conviction has been merely upon the evidence of the Adjutant, P. W. 1, as to what he gathered from enquiries from the ration card holder. There was, apart from this, some evidence as to the guilt of this accused. We are not concerned here with the sufficiency or otherwise of that evidence. But it is certainly not a case of a conviction upon no evidence at all. However insufficient the evidence might have been, it was for the Court trying the accused to consider the sufficiency or other wise thereof, and we cannot substitute our opinion in these proceedings for that of the trying Magistrate or hold that this is such an error which can be said to be an error apparent on the face of the record, even if there is an error in this.

33. In so holding, however, we should not be taken to have decided that a certiorari will in no circumstances lie if the decision of the inferior Tribunal is based on no evidence at all.

34. The learned Advocate‑General who appeared to oppose these Rules did not also question the principles governing the issue of a writ of certiorari laid down in the cases referred to earlier in this judgment, but as we have indicated earlier, he contended that in the present case even if there was misjoinder, it was not such an error for which a certiorari could lie or in other words, it was not an error apparent on the face of the record, for, according to him, a great deal of argument and investigation was necessary in the present case to show that there had been any misjoinder at all, and such an error which took so much argument and investigation to discover could never, according to him, be an error apparent on the face of the record. So far as the petitioner in Writ Petition No. 16 of 1958 is concerned, the learned Advocate‑General has argued that there was no question here of the splitting up the evidence, and considering the evidence separately against the said petitioner, for the charge as sat out in the order‑sheet, was in substance and in effect one of conspiracy, and, therefore, the evidence was common against both the accused persons.

35. We have already given our reasons for not accepting the arguments advanced on behalf of the petitioners in the present case. It is not necessary for us to say anything further in these matters.

36. These Rules are accordingly discharged; but having regard to the facts and circumstances of the present cases, we make no order as to costs. MURSHLD, J.‑I agree. K. B. A. Rules discharged.