BHAGW AN SINGH versus THE STATE OF PUNJAB

Citation: [1952] 1 S.C.R. 812 · Decided: 30-04-1952 · Supreme Court of India · Bench: SIR SYED FAZL ALI · Disposal: Dismissed
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Judgment (excerpt)

1952 
April 30. 
812 
SUPREME COURT REPORTS 
BHAGW AN SINGH 
fl. 
THE STATE OF PUNJAB 
[SAIYID FAzL Au and VIVIAN BoSE JJ.J 
(1952] 
Evidence Act (1 of 1872), secs. 145, 157-Criminal Procedure 
Code, 1898, secs. 208, 288, 537, 540-Criminal 
trial-Examination 
of Witness not examined before Comm:'tting Magistrate-Ugality-'-
State1nents before Committing Magistrate-Admissibility-Statement 
not denied-Use as corroborative evidence-Certificate of magistrate 
that deposition was read over-Presumption of correctness-Prac-
tice of examining Committing Magistrate, impropriety of. 
The Sessions Court has power 
to examine witnesses 
who 
were not examined before the Committing Magistrate because 0£ 
-sec. 540, Criminal Procedure Code, and if the witness is treated 
.as a prosecution witness and examined by the prosecuting coun-
:Sel instead of by the court, that at best would be an irregularity 
.curable by sec. 537 of the Code. 
The proper time to object to 
:Such a procedure would be at the trial itself. 
Shel' Bahadur v. The Crown (I.LR. 15 Lah. 331) and Queen 
Empress v. G. W. Hayfield (I.L.R. 14 All. 212) 
distinguished 
S. S. Jhabwala v. Emperor (A.LR. 1933 All. 690) and Mussamat 
Niamat v. The c,.own. (I.L.R. 17 All. 176) approved. Emperor v. 
Channing Amold (B 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 
e'vent it would be necessary to prove that he did and if the 
former statement was r.educcd to \Vriting, then sec, 145 requires 
that his attentian must be drawn to those parts which are to be 
~sed 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 ne 
furthor 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 Codo, is called in ai& 
but ,even without sec. 288 the court would be 
entitled 
to sar, 
basing on the 
evidence-in-chief which is 
the substantive 
CVl· 
dence, that what the witness said to the police or the Committing 
Magistrate, is 
the true version, not because those 
statements 
form substantive evidence, but because they tally with the evi-
dence-in-chief which is substantive. 
If a . former statement can be brought in under sec. 157 of 
the Evidence Act, it can be transmuted into substantive evidence 
by the application of sec. 288 of the Criminal Procedure Code. 
Tara Singh v. The State [1951] S.C.R. 729 
distinguished. 
• 
• 
• 
• 
S.C.R. 
SUPREME COURT REPORTS 
813 
If the certificate of the Committing Magistrate endorsed on 
1952 
"the deposition sheet states that the deposition was read out to 
--
the witness and the witness admitted it to be correct the court is BhagtUan Singh 
·bound to accept this as correct under sec. 80 of the Evidence 
V'. 
Act until it is proved to be untrue. 
The State of 
It is not necessary nor desirable to examine 
Magistrate to prove the truth of his certificate. 
Kashmera Singh v. The State of Madhya 
(S.C.R.) 526 followed. 
th~ Committing 
Pradesh 
[1952] 
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 . 
CRIMINAL 
APPELLATE 
JURISDICTION ; 
Criminal 
Appeal No. 12 of 1952. 
Appeal by special leave from the judgment and 
order dated 4th June, 1951, of the High Court of 
judicature of Punjab at Simla (Bhandari and Soni JJ.) 
in Criminal Appeal No. 109 of 1951 arising out 
of 
Judgment and 
order dated 
19th March 1951 
of the 
Court of the Additional Sessions Judge, Femzepore, in 
Sessions Trial No. 18 of 1951. 
T. R. Bhasin, for the appellant. 
Goprd Singh, for the respondent. 
1952. April 30. The Judgment of the Court was 
-Oelivered by 
BosE J.-This is a simple case 
at great length on behalf of 
number of technical objections 
:trial taken . 
though it was 
the appellant 
to the validity 
argued 
and a 
of the 
The appellant Bhagwan Singh has been convicted of 
the murder of one Buggar Singh and sentenced to 
death. He has also been convicted under section 19(f) 
of the Indian Arms: Act but we are not concerned with 
that here. 
The prosecution story is that the appell
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