V.P. Tyagi, J.
1. These are two appeals filed by Sukan Raj against the judgments both dated 18th December, 1964 in two separate sessions trials Nos. 8 of 1963 and 9 of 1963, convicting the accused appellant for offences under Sections 409, 467 and 468 I. P. C. in case No. 9 of 1963 and under Sections 471 and 477A. I. P. C. in case No. 8 of 1963 and sentencing him to two years' rigorous imprisonment under each count in both the cases but it has been ordered that the sentences of imprisonment awarded in both the cases under all counts shall run concurrently.
2. It is needless to state the prosecution case as both the appeals can be disposed, of on the question of illegality committed by the trial judge in recording the evidence of the witnesses. It is urged by the learned counsel for the appellant that five prosecution witnesses were examined in case No. 9 but their copies were taken as evidence in case No. 8, and similarly 26 witnesses were examined in case No. 8 but their copies were taken in case No. 9 and the Court while convicting the accused appellant passed its judgments in both the cases on such an inadmissible evidence which was never recorded by the Court in accordance with the provisions of Criminal Procedure Code relating to the recording of evidence.
Learned Deputy Government Advocate has frankly admitted that the trial Court has somehow committed this error of carrying the copies of the statements of some witnesses from one case to another, but his contention is that this is merely an irregularity which is curable under Section 537 Cr. P. C., and since no objection was raised by the accused at the trial for adopting this procedure, it should be taken that it was done by the Court with the consent of the accused and his counsel, and that this procedure did not in any manner prejudice the case of the accused.
3. It is not disputed that witnesses Ballabh Chand P. W. 13, Hamid Khan P. W. 14, Gangasingh, P.W. 15, Bastiram, P.W. 21 and Mangla P. W. 22 were originally examined in case No. 8 of 1963 but the copies of their statements were taken on the record of case No. 9 of 1963 where these witnesses have been marked as P. W. 5, P. W. 6, P.W. 7, P. W. 13 and P. W. 14 respectively. Similarly, the following witnesses namely P. W.8 Jogidas, P.W. 9 Roopsingh, P.W. 10 Harichander, P. W. 15 Hariram, P. W. 16 Bhopalsingh, P. W. 17 Mohanlal, P. W. 18 Mangilal, P. W. 19 Manaram, P. W. 20 Mohanlal, P. W. 21 Thanaram, P. W. 22 Hansraj, P. W. 23 Hansraj (2), P. W. 24, Pannevsingh, P. W. 25 Vijaisingh, P. W. 26 Rameshwarlal, P. W. 27 Kewalram, P. W. 28 Achalaram, P. W. 29 Brifilal, P. W. 30 Khinvraj, P. W. 31 Chaturdan, P. W. 32 Jodhsingh, P. W. 33 Bhikulal, P. W. 34 Narainsing, P. W. 35 Daulal and P. W. 36 Abdul Razak were originally examined in sessions case No. 9 of 1963 but the copies of their statements were brought on record in case No. 8 of 1963 where these witnesses have been marked as P. W. 16, P, W, 17, P. W. 18, P. W. 23, P. W. 24, P. W. 25, P. W. 26, P. W. 28, P. W. 29, P. W. 31, P. W. 32, P. W. 33, P. W. 34, P. W. 35, P. W. 27, P. W. 38, P. W. 39, P. W. 41, P. W. 42, P. W. 43, P. W. 44, P. W. 45, P. W. 46, P. W. 47 and P.W. 48 respectively.
4. The question that arises for my determination in these circumstances is whether the procedure adopted by the trial Court of bringing on the record of a criminal case the statements of the witnesses who were actually examined in another case without giving an opportunity to the accused to cross-examine them is an irregularity curable under Section 537, Cr. P. C. or it is illegality that vitiates the trial.
5. Section 353 Cr. P. C. provides that 'except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.' It is urged by learned Deputy government Advocate that the copies were made out in the presence of the accused but in my opinion mere physical presence of the accused is not necessary. He must be given all opportunities to defend himself by testing the veracity of the witness through the process of cross examination. There is nothing on the record to show that opportunity was afforded to the accused to cross-examine the witnesses when the copies of their statements were taken from one case to another.
In my opinion the procedure adopted in taking on record the copies of the statements of the witnesses from one case to another and then to treat these copies as evidence is a serious departure from the usual and proper procedure prescribed by the Code of Criminal Procedure. Even if it is assumed for the sake of argument that the accused had given his consent to the adoption of such a novel procedure such a consent, in my opinion, cannot give any legal sanctity to this type of evidence which has been brought on record in clear violation of the mandatory provision of the law. It is a well established rule of law that neither the accused nor his counsel can validate by giving his consent anything which is not authorised by law.
The procedure adopted by the trial Court to bring the evidence on record is clearly in derogation to the express provision of the law and therefore, it is difficult for me to accept the contention of learned Deputy Government Advocate that the defect is curable as no prejudice has been caused to the accused. In my opinion the provisions of Section 537 of that Code of Criminal Procedure cannot be attracted to cure a defect of procedure which infringes the mandatory requirement of the Code. This violation is clearly an illegality and not an irregularity. Such an illegality vitiates the trial and no amount of consent of the accused or his counsel can cure the illegality.
6. The provisions of the Code of Criminal Procedure contemplate separate trial in each case. It nowhere provides that evidence recorded in one case may be treated in the other case. The general rule in the case of criminal trials is that there should be a separate trial with respect to each distinct offence. The object evidently is that the attention of the trial Court should be directed to the evidence relating to the charge under inquiry and irrelevant matter should be excluded. This object is not achieved by adopting such procedure but defeated by placing on the record mere copies of the statements of witnesses recorded during the course of a trial relating to another charge.
This view finds support from the two cases decided by the Lahore High Court. In Mohammad Khan v. Emperor, AIR 1928 Lah 34, a person was tried separately for two offences namely, Section 307, I.P.C. and Section 20 of the Indian Arms Act. The witnesses in the two cases were more or less the same. The trying magistrate recorded the evidence of the witnesses in one case and the copies thereof were taken on record in the other case. The validity of the trial of the case in which the evidence of the other case was considered by the trial Court was challenged and the learned Judge held that the procedure adopted by the trial Court was illegal and the trial was, therefore, vitiated.
7. In Thakur Singh v. Emperor, AIR 1927 Lah 781, three persons were prosecuted and tried for murder of two persons in two trials. The defence evidence given by the accused in the first trial was, with their consent, treated as evidence in the second. The learned Judges held that the defence evidence in the second trial was not duly recorded as required by Section 353, and the fact that the accused had consented to the irregularity would not give the procedure legal sanction, and therefore, it was held that the irregularity vitiated the trial.
8. Learned Deputy Government Advocate in support of his contention placed reliance on Taqi Mohammad v. Haji Mohammad Jan, AIR 1938 Oudh 253, where at the request of the accused the learned trial judge allowed the evidence of the prosecution witnesses in cross case to be utilized as defence evidence in another case. The learned Judge held that the procedure was irregular but since the accused had consented to this procedure he cannot be heard to say that they were prejudiced by this procedure and therefore, the trial of the case cannot be held to be vitiated and the irregularity was curable under Section 537. With due respect I beg to differ with the opinion expressed by the learned Judge in that case. This in my opinion, is not a mere irregularity but it is an illegality which cannot be cured by the application of Section 537 of the Code of Criminal Procedure. That case is also distinguishable on facts. In that case the evidence which was taken on record by bringing the copies of the statements from the cross case was totally disbelieved by the trial Court, and therefore the observations made by the learned Judge in those circumstances cannot hold good for the facts and circumstances of this case.
9. In this view of the matter I am of opinion that the trial of both the cases--Sessions case No. 9 of 1963 and Sessions case No. 8 of 1963 has been vitiated. The procedure adopted by the learned trial Judge is wholly illegal and therefore the convictions and sentences of the accused In both the cases are hereby quashed, and they are remanded to the Sessions Judge, Jodhpur, for a de novo re-trial.
10. Both the appeals are accordingly allowed.