Ramaswami Goundar, J.
1. The accused, one Dhanuskodi Nadar, who is the appellant before us, was charged before the First Criminal Sessions of this court, presided over by our learned brother Eamaswami J. for offences under Section 420, I. P, C. and Section 467 read with Section 471, I.P.C. He is a merchant, said to have been carrying on business in betelnuts at Virudhunagar. As a result of the last world War, restrictions were imposed by the Government in the matter of export and import trade, and trading had to he done only on permits issued by the authorities concerned.
As regards betelnut trade, about the middle of 1949, the commodity was placed under the licensing scheme on a quota basis. The merchant who intended to apply for a quota should make out that he was an established importer; and the accused chose the year 1945-46 as the basic year that being the best year for him and applied for permit by his application, Ex. P. 1, on the footing that he was trading to the tune of Rs. 4,21,000.
A permit was granted to him in May 1953 for one-sixth of that amount, namely, Rs. 70,000 and odd. On obtaining the permit the accused put through the entire transaction covered by the licence amount and made a profit of over Rs. 38,000. The accused obtained the permit on the basis of certain documents, Ex. P. 11 to P. 69, and his accounts, Ex. P. 76, which he produced before the chartered accountant and obtained a certificate of past imports, and also before the licensing authorities.
The case of the prosecution was that the railway receipts and the invoices, Exs. P. 11 to P. 36 as well as the accounts Ex. P. 76 made use of by the accused to prove that he was an established importer in the basic year 1945-46, were not genuine, but were fabricated documents. In other words, the prosecutionendeavored to prove before the jury that the receipts, Exs. p. n to P. 36, and the accounts Ex. P. 76 on the basis of which the permit was applied for and granted were all complete fabrications.
The Jury accepted the evidence and returned a unanimous verdict that the accused was guilty as charged. Accepting that verdict as the only possible verdict that could be given on the evidence, the learned trial Judge convicted the accused under Section 420 and under Section 467 read with Section 471, I.P.C. and sentenced him to rigorous imprisonment for three years under each count, the sentences to run concurrently. As against that conviction, the accused has preferred this appeal, and a Bench of this court granted him leave under Section 411-A Clauses (a) (b) and (c), Cr. P.C.
2. The learned Counsel for the accused, Mr. V.L. Ethiraj, even at the opening of his arguments, brought to our notice, what he characterised as an unusual procedure which the learned trial Judge adopted in the trial of this case. The Judge presiding over the Sessions of this Court is usually supplied with a typed bundle of the entire evidence, oral and documentary, recorded in the lower court, the charge framed against the accused, the statement of the accused, and the committal order of the Magistrate,
Of course, no exception can be taken, provided the use of that bundle is confined to the Judge himself. But, in this case, what happened was that the learned trial Judge directed copies of that bundle to be placed in the hands of the jury for use even at the very commencement of the trial. The members of the Jury were accordingly supplied with such typed) bundles and they had the use of the bundles during all the days of the trial.
We must take it that the members of the jury must have gone through the bundle of the evidence recorded by the committing Magistrate as well as his committal order. These facts, presented to us by the learned Counsel for the accused were not controverted) by the learned State Prosecutor.
We were, however, told by the learned State Prosecutor that the object of the learned Judge in placing the typed bundle of the entire evidence recorded in the committal court before the Jury was only to enable the latter to follow the evidence in regard to contradictions and alleged developments and documentary evidence referred to in the trial with greater facility and understanding. Apart from that assurance, we have ourselves no doubt whatever that the learned Judge could have had any other intention.
3. On those facts the learned Counsel for the appellant contended that the fact that the members of the Jury were supplied with the en-tire evidence, oral and documentary of the committal inquiry, as well as the committal order, would have necessarily poisoned the mind of the jury against the accused', that it was quite possible that on that evidence, the jury had come to a conclusion as to the guilt of the accused even at the very commencement of the trial, and that therefore the trial became unreal.
It is obvious that the supply of typed bundles of the entire evidence taken before the committal court to the jury would be, though not intended, an invitation to them to take into consideration a whole body of evidence which was not evidence in the trial, and, therefore, wholly irrelevant. It is only when the provisions of 8. 288 Cr. P.C. are invoked, the evidence recorded in the committal enquiry can be treated as evidence in the trial for all purposes, subject to the provisions of the Evidence Act.
The result was that the Jury had before them two sets of evidence, - one set contained in the typed bundle which was wholly inadmissible, and the other set consisting of the evidence recorded by the learned Sessions Judge. It will be readily seen that the two sets of evidence were not and could not have been identical. There might well have been contradiction and variations in the evidence of the witnesses in the committal court and in the Sessions Court; and quite a large number of documents which were admitted in evidence in the committal court were not marked as exhibits in the Sessions Court.
It is therefore impossible for us to say on which set of evidence the Jury came to their conclusion, and we are not prepared to speculate on that matter. We consider that the learned: counsel for the appellant was justified in his contention that the possibility of the jury making up their minds on the evidence put into their hands in the shape of typed bundle even at the commencement of the Sessions trial cannot be ruled out, in which case the subsequent trial would have become unreal; that is to say, there was no trial at all.
4. But the learned State Prosecutor contended that the fact that the members of the jury were supplied with the typed bundle of the evidence recorded in the committal court would not be worse than a case where totally irrelevant evidence was admitted in evidence, and that being so, it is open to this court, as a court of appeal, to delete the inadmissible evidence and come to its own conclusion on the evidence which was recorded during the sessions trial. In support of his contention, he relied on a decision of the Supreme Court in 'Ramkishan v. State of Bombay' Air1955 SO 104 (A), where it was stated at page 121.
What has therefore got to be done in cases where inadmissible evidence has been admitted and has been incorporated in the learned Judge's charge to the jury is to exclude the inadmissible evidence from the record and consider whether the balance of evidence remaining thereafter is sufficient to maintain the conviction.
That was a case where certain evidence inadmissible under Section 162, Cr. P.C. and Section 27 of the Indian Evidence Act had been admitted and therefore there was an error of law which amounted to a misdirection to the jury. In such cases, the provisions of Sections 423(2) and 537, Cr. P.C. will have to be considered.
The former section states that nothing therein contained shall authorise the court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge and under the latter section no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity or any misdirection in any charge to the jury, unless such error, omission, irregularity or misdirection has in fact occasioned a failure of justice.
Therefore, as observed by the Supreme Court in the case cited above, the court of appeal is entitled to substitute its own verdict for the verdict of the jury, if, on examining the record for itself, it comes to the conclusion that the verdict of the jury was erroneous or that there has been a failure of justice in the sense that a guilty man had been acquitted or an innocent man had been convicted.
But, the present case is, not a case of the learned trial Judge admitting in evidence a piece of inadmissible evidence, but one where the entire set of evidence recorded in the committal court, which was clearly inadmissible in evidence, was placed in the hands of the jury even at the commencement of the trial for them to study, and possibly come to their conclusion. In our view, the procedure adopted by the learned Judge has vitiated the trial itself.
5. We are not saying that it is not open to us to ignore the inadmissible set of evidence and to examine the evidence taken by the Sessions Judge and come to our own conclusion whether that evidence would not be sufficient to sustain the conviction against the accused. Ordinarily, we would be inclined to do so if the normal procedure had been followed.
Further, if we were to adopt the course suggested by the learned State Prosecutor, we would be depriving the accused of the possible advantage of a verdict of acquittal at the hands of the jury. Moreover, the course suggested by the learned State Prosecutor is not the only alternative open to us. In 'Mushtak Hussein v. State of Bombay' : 4SCR809 (B), the learned Judges of the Supreme Court pointed out the following alternatives at pages 285-286.
We are satisfied that as a result of these misdirections, the jury in all likelihood gave a divided verdict of guilty by three to two not on evidence, but on the basis of assumptions and conjectures.
In this situation, the question for consideration is what procedure should be followed by this court undoing the mischief that has happened and what would be most conducive to the ends of justice. The simplest course open to us is to order a retrial of the appellant. It is also open to us to remit the case to the High Court with a direction that it should consider the merits of the case in the light of our decision, and say whether there has been a failure of justice as a result of these misdirections. Lastly, it is open to us to examine the merits of the case and decide for ourselves whether there has been a failure of justice in the case and an innocent man has been convicted.
In the circumstances of that case, the learned Judges adopted the third course, and at page 286, they observed:
In the peculiar circumstances of this case, we have chosen to adopt the third course, because at this moment of time, it is most conducive to the ends of justice. It seems plain to us that on the material on this record, no reasonable body of persons could possibly have arrived at the conclusion that the appellant kidnappedShilavati as alleged by the prosecution
Those observations were adopted and followed in the subsequent case in : 1955CriLJ196 (A) cited above.
6. As we have already indicated, having regard to the circumstances of the present case, we consider that the proper course to be adopted in this case would be to order a retrial. Accordingly, we set aside the convictions and sentences, and order a retrial. The accused will continue to remain on the same bail.