1. These two appeals can be decided on the same preliminary point. To take first Appeal No. 581 of 1922, the accused (appellant) has been convicted of various offences in connexion with the Mappilla rebellion. In the first instance he and his father were placed on trial together before the Special Judge, Mr. Edgington. But, after the trial had proceeded for sometime, it was decided to hold two separate trials. Mr. Edgington then began the trial of the present accused and, rather unnecessarily so far as we can see, exhibited the evidence already given at the joint trial, instead of treating it as given for the purpose of the trial of accused, whether alone or jointly. That, however, is not the point, with which we are concerned. What we are concerned with is that Mr. Edgington ceased to be the Judge, before the trial of the accused was concluded, being succeeded by Mr. Jackson. Mr. Jackson, apparently on his own initiative, decided to hold the trial de novo. He did not apparently notice that the course he adopted, the exhibition of the witnesses' depositions in the previous trial without actually examining them de novo, deprived the accused and himself of any advantage which the de novo proceedings would have secured. We, however, have to decide whether there was an irregularity, which makes it our duty to order a new trial.
2. The general rule, as stated in 2 Hawkins' Pleas of the Crown, chapter 46, is that 'in cases of life no evidence is to be given against a prisoner, but in his presence.' That rule is followed in this country and has been extended under our Code to all criminal trials. It is assumed in the directions regarding different kinds of trials in the Criminal Procedure Code that the witnesses are examined viva voce in the course of the trial; and this has been recognized frequently in judicial decisions, for instance, in The Queen v. Bishonath Pal (1869) 12 W. R. 3. and more recent cases to be referred to. No doubt departures from it are permitted, but only (so far as we have been shown) under some explicit provision of law, for instance, in cases in which it is difficult or impossible to secure the presence of a witness or under Section 145 to contradict the witness's evidence at the trial or under Section 157 to corroborate it; and there is also the class of cases covered by Section 288, Criminal Procedure Code. But none of these provisions has any application to what happened in the case before us, in which, to anticipate the reference to a statement of the accused's vakil to be found in the record, one witness's previous deposition was filed ' in order to save cross-examination.' We must therefore hold that there has been a deviation from the normal course of procedure, which would ordinarily vitiate the proceedings.
3. The question is, however, whether that deviation is cured by the consent of the accused. There is no doubt nothing in the record to show that the accused or the three vakils, by whom he was represented, consented explicitly to it. We find, however, in the record of the short examination of the third prosecution witness at the conclusion of Exhibit D, his previous statement, that a copy of that previous statement was filed ' at the request of the vakil for the accused to save cross-examination again.' There is further the omission to take any objection to the procedure at the trial or as a ground of appeal in this Court; and such omission, although we do not allow it to stand in the way of the accused raising the point, is significant with reference to his attitude and the attitude of his advisers in the lower Court. We therefore hold that there was an implied consent by the accused to the admission of the copies, of the previous depositions of the prosecution witnesses instead of their being examined in full at the trial.
4. Next we have to consider whether the accused's consent cures the irregularity. It has lately been held in Jainab Bibi Saheba v. Hyderally Sahib I.L.R. (1920) Mad. 609 that such a consent would cure a similar irregularity in a civil suit. But that is not the rule in criminal matters. As regards them we have a clear decision of the Privy Council in Reg v. Bertrand (1867) L.R. I.P.C. 520in which the common understanding in the profession, that a prisoner can consent to nothing, is referred to in connexion with consent to an irregularity, very similar to that now under consideration; and it may be added that very comprehensive reasons are given by the Judicial Committee in support of its insistence on the evidence in criminal trials being taken viva voce. This decision was followed, the principle of it being fully adopted in The Queen v. Bishonath Pal (1869) 12 W.R. 3. already referred to, in The Deputy Legal Remembrancer v. Upendra Kumar Ghose 12 C.W.N. 140. and In re Annavi Muthiriyan I.L.R. (1916) Mad. 449. It may therefore be taken that, although the Indian Law of Evidence was enacted in 1872, the judgment of the Privy Council has been accepted as stating the law applicable in this country, although it was pronounced in 1867. In re Annavi Muthiriyan I.L.R. (1916) Mad. 449. Seshagiri Ayyar, J., no doubt held that there was nothing in Beg v. Bertrand (1886) L.R. I.P.C. 520. or in the principle therein enunciated precluding the judge hearing the case on appeal from deciding whether, notwithstanding the consent of the accused, his case has been prejudiced by the irregularity. We can say only that the Privy Council restricted the discretion of the Appellate Court in such circumstances within very narrow limits, since their Lordships said that they would (if necessary) have interfered in the case before them, although they were not able to affirm or deny the inconveniences apprehended to have in fact happened in the trial then in question, 'because it was one of the evils, incident to the cause that made such affirmation and denial equally impossible' and excluded only from their decision cases in which part of the previous deposition accepted in lieu of oral evidence was 'so equivocably formal or very short' as to make their remarks inapplicable. With all respect, it is therefore impossible to recognize the existence of any such general discretion as was contemplated by Seshagiri Ayyar, J. Reference has also been made before us to Section 167 of the Indian Evidence Act. But that section cannot affect the considerations on which the Privy Council proceeded. Its application would only require us to decide whether, if all the depositions in the previous trial, which were irregularly admitted, were expugned from the record, there would remain independently of those depositions sufficient evidence to justify the conviction. We have considered whether we can come to any such conclusion; and we find that we cannot, because the exclusion of those previous depositions, consisting, as they do, both of cross-examination and examination in chief, would leave us with a record, which represents no inquiry conducted fairly or with full appreciation at the time on the part of either side of what had been or remained to 'be proved. We cannot deal judicially with a record compiled after such a process of elimination, when it is clear that we have no security for accused having foreseen this effect of his consent on the trial as a whole.
5. In these circumstances the only course is to set aside the conviction of the accused appellant and direct that he be retried, the evidence of all the witnesses being taken viva voce and their previous depositions being admitted, only if their admission is justified by law.
6. In Referred Trial No. 64 of 1922 corresponding with Criminal Appeals Nos. 585 and 769 of 1922 the same objection has been taken and our order must be the same.