1. This case arises out of a judgment in a Criminal Appeal in which the Appellate Magistrate refused to reverse the conviction of the petitioners on the ground urged before him that the conviction was illegal, because the Trial Court had allowed certified copies of evidence given by the petitioners is defence witnesses in a counter-case to be filed as evidence for the defence in this case. It is contended that the refusal of the Appellate Magistrate is directly opposed to the ruling of a Bench of this Court in Umar Hajee v. King Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659.
2. On another ground raised it appears to us that the Appellate Magistrate's judgment cannot be supported. He considered that Section 167 of the Evidence Act did not compel him to order a retrial merely, because these copies of depositions had been put in, since, to use his words 'without the evidence thus admitted there is sufficient evidence to prove the charges.' He seems to have entirely overlooked the fact that the evidence thus admitted was for the defence and not for the prosecution, He has thus decided the case against the accused by the simple process of ruling out and refusing to consider the evidence for the defence. But it would not suffice for us merely to order him to rehear the appeal, if, under the law. as it stands stated in Uniar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659, he would still have to reject these depositions and order retrial. We, therefore, had the question argued before us whether the case in Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659 applies here and, if it does not lay down too strict a procedure, and whether we should not have the case posted before a Full Bench to consider whether the case in Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659 has been rightly decided.
3. We have perused the printed papers in the 2 cases, which gave rise to Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659. A criminal trial had proceeded for some time against two persons in part before one Special Sessions Judge. It was then split up into two. That Judge was succeeded by another,. who decided on a de novo trial. At the de novo trial the 2nd Judge permitted the depositions of the prosecution witnesses taken at the original trial to be filed as evidence for the prosecution. Whether this was done at the request or with the consent of the defence is not material. The evidence of the defence, witnesses was taken entirely by the 2nd Judge. Now, the judgment in Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659, proceeds on the general proposition that 'in cases of life, no evidence is to be given against a prisoner, but in his presence,' subject to the exceptions permitted by some express provisions of law. It is clear from the facts as set out above that the Bench was dealing only with a case, where previous depositions not taken in the presence of the accused were used as evidence against him. We think that the decision does not go further than to decide that such a procedure is contrary to law, and, if we may say so with respect, it embodies a very salutary principle, the principle upon which Reg v. Bertrand (1867) L.R. 1 P.C. 520 on which Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659, relies, proceeded. In the latter case there was the additional infirmity that what was read over to the witnesses was not their actual depositions, but only notes of those cases taken by the trying Judge. We do not think that Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659 can be taken to having decided that evidence taken in favour of a prisoner in a counter-case in which he was a witness, but was not himself the prisoner cannot be put in by him on his own behalf.
4. In the case before us the deposition given by defence witnesses 2 and 3 when examined as prosecution witnesses in the counter-case were filed with the consent of both sides. We do not think that Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659 prohibits such a procedure, which obviously saves a great deal of time which would otherwise be occupied in merely copying down previous depositions. No one is prejudiced. Obviously the prisoner is not and if the Crown had thought its case would be prejudiced, it would not have consented to the procedure.
5. Our attention has been drawn to a ruling of a Bench of the Lahore Court in Thakar Singh v. Emperor 1927 (28) Cri. L.J. 771, but, so far as we can gather the facts of the case, it appears that the defence witnesses were not summoned and examined in Court, but their previous depositions were put on the record without the witnesses coming to swear to their truth. The same procedure appears to have been adopted in the case reported in Allu v. Emperor I.L.R. (1923) Lah. 376. In the present case, however, the defence witnesses were called and examined in the presence of the accused and they swore to the truth of their previous statements, which were then filed with their consent to save time;. In another case, Emperor v. Harjivan Valji I.L.R. (1925) B. 174, a High Court Bench held that to . file for the Crown depositions taken in one case as substituted evidence in another case against the same prisoner was merely an irregularity. But it may be noted that in that case all the depositions had been taken in the presence of the prisoner.
6. We do not, therefore, think it necessary to refer this case to a Full Bench on the question of reconsidering the decision in Umar Hajee v. King-Emperor I.L.R. (1922) M. 117 : 43 M.L.J. 659. We hold on the facts here that there was nothing illegal or irregular in the procedure! at the Trial Court. However, as we have already remarked, the Appellate Magistrate has erred in refusing to consider the evidence recorded for the defence. We must, therefore, set aside his order and direct him to rehear the appeal and decide it after giving due weight to the evidence recorded in the previous depositions filed as Exhibits VI, VI-a, VII and VII-a. We order accordingly.