# A.T. MYDEEN AND ANOTHER v. THE ASSISTANT COMMISSIONER, CUSTOMS DEPARTMENT

- **Citation:** [2021] 10 S.C.R. 91
- **Court:** Supreme Court of India
- **Decided:** 2021
- **Case number:** Criminal Appeal No. 1306 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, Vikram Nath, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-t-mydeen-and-another-v-the-assistant-commissioner-customs-department-34737
- **Pages:** 25

## Headnote

Code of Criminal Procedure, 1973: Allegation of clandestine
export - Two separate trials - Acquittal by two separate judgments
- Appellate court considering evidence of only one case and
convicting the accused - Propriety of - Held: Evidence recorded in
a criminal trial against any accused is confined to the culpability
of that accused only and it does not have any bearing upon a coaccused, who has been tried on the basis of evidence recorded in a
separate trial, though for the commission of the same offence - In
the instant case, High Court committed an error of law in dealing
with the evidence of one trial for deciding both the appeals arising
out of two separate trials - Prosecution in both the trials produced
seven witnesses and filed 13 documents which were proved and
exhibited - The witnesses in the second case were not examined in
the same sequence as the first case and consequently, the 13
documents filed were also not given the same exhibit numbers in the
second case as in the first case - Merely because the seven witnesses
produced by the prosecution were the same in both the cases would
not mean that the evidence was identical and similar because in the
oral testimony, not only the examination-in-chief but also the crossexamination is equally important and relevant, if not more - Even if
the examination-in-chief of all the seven witnesses in both the cases,
although examined in different sequence, was the same, there could
have been an element of some benefit accruing to the accused in
each case depending upon the cross-examination which could have
been conducted may be by the same counsel or a different counsel
- The role of each accused cannot be said to be the same - The
same witnesses could have deposed differently in different trials
against different accused differently depending upon the complicity
or/and culpability of such accused - All these aspects were to be
examined and scrutinised by the Appellate Court while dealing with
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both the appeals separately and the evidence recorded in the
respective trials giving rise to the appeals - High Court ought to
have distinctly considered and dealt with the evidence of both the
trials and then decide the culpability of the accused persons - Matter
remitted to High Court for consideration afresh - Customs Act, 1962
- Administration of criminal justice - Fair trial.
Code of Criminal Procedure, 1973: ss.367, 391 - In a criminal
appeal against conviction, the appellate court examines the evidence
recorded by the trial court and takes a call upon the issue of guilt
and innocence of the accused - The scope of the appellate court's
power does not go beyond the evidence available before it in the
form of a trial court record of a particular case, unless s.367 or
s.391 comes into play in a given case, which are meant for further
inquiry or additional evidence while dealing with any criminal
appeal.
 Allowing the appeals and remitting the matter to High
Court, the Court
HELD: 1.1 Fair trial is the foundation of the criminal justice
delivery system. The statutory arrangement of criminal justice
delivery system encompasses few provisions in that regard under
the Cr.P.C. and the Evidence Act, 1872.Section 273 of Cr.P.C.
provides that except as otherwise expressly provided, all evidence
taken in the course of the trial or other proceeding shall be taken
in the presence of the accused, or, when his attendance is
dispensed with, in the presence of his pleader. The exception of
this provision finds place in section 205 of Cr.P.C. wherein
personal attendance of accused is dispensed with and he is
permitted to appear by his pleader and also in section 299 of
Cr.P.C., which provides for recording of evidence in the absence
of the accused under certain eventualities like absconding of
accused or commission of an offence punishable with death or
imprisonment for life by some person or persons unknown.
Howeve

## Text

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A.T. MYDEEN AND ANOTHER
v.
THE ASSISTANT COMMISSIONER, CUSTOMS DEPARTMENT
(Criminal Appeal No. 1306 of 2021)
OCTOBER 29,2021
[DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
AND B. V. NAGARATHNA, JJ.]
Code of Criminal Procedure, 1973: Allegation of clandestine
export - Two separate trials - Acquittal by two separate judgments
- Appellate court considering evidence of only one case and
convicting the accused - Propriety of - Held: Evidence recorded in
a criminal trial against any accused is confined to the culpability
of that accused only and it does not have any bearing upon a coaccused, who has been tried on the basis of evidence recorded in a
separate trial, though for the commission of the same offence - In
the instant case, High Court committed an error of law in dealing
with the evidence of one trial for deciding both the appeals arising
out of two separate trials - Prosecution in both the trials produced
seven witnesses and filed 13 documents which were proved and
exhibited - The witnesses in the second case were not examined in
the same sequence as the first case and consequently, the 13
documents filed were also not given the same exhibit numbers in the
second case as in the first case - Merely because the seven witnesses
produced by the prosecution were the same in both the cases would
not mean that the evidence was identical and similar because in the
oral testimony, not only the examination-in-chief but also the crossexamination is equally important and relevant, if not more - Even if
the examination-in-chief of all the seven witnesses in both the cases,
although examined in different sequence, was the same, there could
have been an element of some benefit accruing to the accused in
each case depending upon the cross-examination which could have
been conducted may be by the same counsel or a different counsel
- The role of each accused cannot be said to be the same - The
same witnesses could have deposed differently in different trials
against different accused differently depending upon the complicity
or/and culpability of such accused - All these aspects were to be
examined and scrutinised by the Appellate Court while dealing with
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[2021] 10 S.C.R. 91
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both the appeals separately and the evidence recorded in the
respective trials giving rise to the appeals - High Court ought to
have distinctly considered and dealt with the evidence of both the
trials and then decide the culpability of the accused persons - Matter
remitted to High Court for consideration afresh - Customs Act, 1962
- Administration of criminal justice - Fair trial.
Code of Criminal Procedure, 1973: ss.367, 391 - In a criminal
appeal against conviction, the appellate court examines the evidence
recorded by the trial court and takes a call upon the issue of guilt
and innocence of the accused - The scope of the appellate court's
power does not go beyond the evidence available before it in the
form of a trial court record of a particular case, unless s.367 or
s.391 comes into play in a given case, which are meant for further
inquiry or additional evidence while dealing with any criminal
appeal.
 Allowing the appeals and remitting the matter to High
Court, the Court
HELD: 1.1 Fair trial is the foundation of the criminal justice
delivery system. The statutory arrangement of criminal justice
delivery system encompasses few provisions in that regard under
the Cr.P.C. and the Evidence Act, 1872.Section 273 of Cr.P.C.
provides that except as otherwise expressly provided, all evidence
taken in the course of the trial or other proceeding shall be taken
in the presence of the accused, or, when his attendance is
dispensed with, in the presence of his pleader. The exception of
this provision finds place in section 205 of Cr.P.C. wherein
personal attendance of accused is dispensed with and he is
permitted to appear by his pleader and also in section 299 of
Cr.P.C., which provides for recording of evidence in the absence
of the accused under certain eventualities like absconding of
accused or commission of an offence punishable with death or
imprisonment for life by some person or persons unknown.
However, this exception has few conditions to be strictly followed
by the trial court and prosecution. Besides such an exception,
the basic principle of recording evidence in presence of the
accused is imperative. [Paras 19, 20, 21][100-A-C, E-G]
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1.2 In the Evidence Act, 1872, section 33 provides relevancy
of certain evidence for proving, the truth of facts stated therein,
in any subsequent proceeding, according to which evidence given
by a witness is treated to be relevant in a subsequent proceeding
or at a later stage in the same proceeding under certain
eventualities. [Para 23][103-F]
Karan Singh v. State of Madhya Pradesh AIR 1965 SC
1037 : [1965] 2 SCR 1; Nirmal Singh v. State of
Haryana (2000) 4 SCC 41:[2000] 2 SCR 807;
Jayendra Vishnu Thakur v. State of Maharashtra (2009)
7 SCC 104:[2009] 8 SCR 591; Raja @ Ayyappan v.
State of Tamil Nadu (2020) 5 SCC 118 - relied on.
Doat Ali and Ors. v. Mahammad Sayadali and Anr. AIR
1928 Cal 230; Pedda Venkatapathi and Ors. v. State
AIR 1956 AP 96 - referred to.
2. The High Court committed an error of law in dealing
with the evidence of one trial for deciding both the appeals arising
out of two separate trials. The prosecution in both the trials
produced seven witnesses and filed 13 documents which were
proved and exhibited. The witnesses in the second case were
not examined in the same sequence as the first case and
consequently, the 13 documents filed were also not given the
same exhibit numbers in the second case as in the first case.
Merely because the seven witnesses produced by the prosecution
were the same in both the cases would not mean that the evidence
was identical and similar because in the oral testimony, not only
the examination-in-chief but also the cross-examination is equally
important and relevant, if not more. Even if the examination-inchief of all the seven witnesses in both the cases, although
examined in different sequence, was the same, there could have
been an element of some benefit accruing to the accused in each
case depending upon the cross-examination which could have
been conducted maybe by the same counsel or a different counsel.
The role of each accused cannot be said to be the same. The
same witnesses could have deposed differently in different trials
against different accused differently depending upon the
complicity or/and culpability of such accused. All these aspects
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS
DEPARTMENT
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were to be examined and scrutinised by the Appellate Court while
dealing with both the appeals separately and the evidence
recorded in the respective trials giving rise to the appeals.
[Paras 35, 36, 37][111-F-H; 112-G-H; 113-A-C]
3.1 In the matter of a criminal trial against any accused, the
distinctiveness of evidence is paramount in light of accused's
right to fair trial, which encompasses two important facets along
with others i.e., firstly, the recording of evidence in the presence
of accused or his pleader and secondly, the right of accused to
cross-examine the witnesses. These facts are, of course, subject
to exceptions provided under law. In other words, the culpability
of any accused cannot be decided on the basis of any evidence,
which was not recorded in his presence or his pleader's presence
and for which he did not get an opportunity of cross-examination,
unless the case falls under exceptions of law. [Para 39][113-E-G]
3.2 It is also an undisputed proposition of law that in a
criminal appeal against conviction, the appellate court examines
the evidence recorded by the trial court and takes a call upon the
issue of guilt and innocence of the accused. Hence, the scope of
the appellate court's power does not go beyond the evidence
available before it in the form of a trial court record of a particular
case, unless section 367 or section 391 of Cr.P.C. comes into
play in a given case, which are meant for further inquiry or
additional evidence while dealing with any criminal appeal.
[Para 41][114-A-B]
3.3 In the present controversy, two different criminal
appeals were being heard and decided against two different
judgments based upon evidence recorded in separate trials,
though for the commission of the same offence. As such, the High
Court fell into an error while passing a common judgement, based
on evidence recorded in only one trial, against two sets of accused
persons having been subjected to separate trials. The High Court
ought to have distinctly considered and dealt with the evidence
of both the trials and then to decide the culpability of the accused
persons. [Para 42][114-C-D]
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4. Once a common judgment is set aside for one appeal, it
cannot be upheld for another appeal. There cannot be a severance
of the judgment particularly when it arises in a criminal case,
where the rights of the accused are as important as the rights of
a victim. Therefore, it would be in the fitness of things and in the
interest of the parties that the matters are remanded to the
High Court for a fresh decision in accordance with law.
[Para 44][114-H; 115-A-B]
Case Law Reference
[1965] 2 SCR 1
relied on
Para 26
[2000] 2 SCR 807
relied on
Para 27
[2009] 8 SCR 591
relied on
Para 28
(2020) 5 SCC 118
relied on
Para 30
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1306 of 2021.
From the Judgment and Order dated 19.10.2019 of the High Court
of Madras at Madurai Bench in Crl. A. (MD) No.58 of 2009.
With
Criminal Appeal Nos.1307-1308 And 1309-1310 of 2021.
R. Basant, S. Nagamuthu, Sr. Advs., K. K. Mani, Ms. T. Archana,
M. P. Parthiban, A. S. Vairawan, R. Sudhakaran, Mrs. Shalini Mishra,
T. Hari Hara Sudhan, Vikash G. R., Advs. for the Appellants.
Vikramjit Banerjee, ASG, Mukesh Kumar Maroria, Mohd. Akhil,
Prashant Bhagwati, Nachiketa Joshi, Sughosh Subramaniyam, B. Krishna
Prasad, Advs. for the Respondent.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
1. Leave granted.
2. Present set of appeals assail the correctness of the judgment
and order dated 19.10.2019 passed by the learned Single Judge of the
Madras High Court, Madurai Bench in Criminal Appeal Nos. (MD) 58
and 59 of 2009, titled as The Assistant Commissioner, Customs
Department, Tuticorin Vs. A. Dhanapal and four others as respondents
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS
DEPARTMENT
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in Crl.A.(MD) No. 58 of 2009 and K.M.A. Alexander as sole respondent
in Crl.A.(MD) No. 59 of 2009.
3. Trial Court vide separate judgments and orders dated 23.05.2008
passed in C.C. No. 2 of 2003 and C.C. No.4 of 2004 under sections 132,
135(1)(a)(ii) read with 135A of the Customs Act 1962, had acquitted all
the six accused. However, the High Court, vide impugned judgment,
proceeded to record conviction of all the six accused and awarded
sentence to undergo imprisonment of one year and fine of Rs. 50,000/-
each and in default to undergo further six months rigorous imprisonment.
It accordingly allowed both the appeals.
4. Anti-Smuggling Wing of the Customs department at Tuticorin,
raided a warehouse situated at Door No. 111, Etayapuram Road, Tuticorin
town on 10.03.1998 upon receipt of some specific information. In the
raid, large quantities of cardboard boxes were recovered. Three persons
were also present there, who identified themselves as Rahman Sait alias
Nathan, Selvaraj and Sullan. Upon questioning, Nathan admitted that
419 cardboard boxes contained sandalwood billet/sticks and 57 cardboard
boxes contained Mangalore tiles. All the above cardboard boxes were
kept for export from Tuticorin to Singapore clandestinely and to be
delivered to one RN Contractors Enterprise Company, Singapore.
5. All the above 476 cartons, plastic strips, packing materials, loose
Mangalore tiles, marking stencil plates were seized before two witnesses
and separate memos (Mahazars) were prepared. On searching Mr.
Nathan, one key chain of Room No. 212, Chitra Lodge was also seized.
Seized material was transported to Customs Office. Sandalwood was
valued at Rs. 96,52,800/- and Mangalore tiles were valued at Rs. 10,000/
-. The total value thus being Rs. 96,62,800/-.
6. After completing the inquiry, the Assistant Commissioner of
Customs filed criminal complaint against five accused namely A.
Dhanapal, A.T. Mydeen, Janarthanan, N. Ramesh and Rahman Sait for
offence punishable under sections 132, 132(1)(a)(ii) and 135A of the
Customs Act. It was registered as Calendar Case No. 2 of 2003 in the
Court of Additional Chief Judicial Magistrate, Madurai. The prosecution
examined seven witnesses and filed 13 documents which were duly
proved by the witnesses and marked as exhibits.
7. The sixth accused K.M.A. Alexander was absconding and was
later on arrested, as such separate complaint was filed by Assistant
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Commissioner against him which was registered as Calendar Case No.
4 of 2004 in the Court of Additional Chief Judicial Magistrate, Madurai.
In this case also the prosecution examined seven witnesses and filed 13
documents as exhibits duly proved.
8. The Trial Court on 23.05.2008 delivered two separate judgments
in both the cases i.e. C.C. Nos. 2 of 2003 and 4 of 2004 and recorded
acquittal of all the accused on the following findings:
a)
No evidence was shown to prove that the accused are
Customs House Agents and they packed and kept the boxes
and had an intention to attempt to export Sandal Wood,
illegally to Singapore.
b)
It was proved that the sandalwood had arrived at Tuticorin
two months before and arrangements were made to cancel
the shipping bill. Accordingly, it cannot be said that accused
had an intention to evade the customs duty levied by the
customs department by crossing the green gate and having
escaped by wrong declaration contravening section 135 of
the Customs Act.
c)
With regard to section 132 of Customs Act, there are no
documents on record to show that the accused forged the
documents and produced the same before anybody.
d)
It was not proved beyond reasonable doubt that the accused,
with the intention of evading customs duty under section
135 (1)(a)(ii) of the Customs Act, had attempted to export
carton containing prohibited sandalwood by means of forged
documents thereby causing revenue loss to the customs
department and contravention of section 135A of the
Customs Act.
e)
The case is pending before the Forest Department officials
and hence this court cannot pass any order permitting
customs officials under Section 126 of Customs Act either
for sale or for auction. Further, the sandalwood not been
deposited in the Trial Court under section 95 CrPC,
therefore, it was not in the custody of the Trial Court.
9. Aggrieved by the acquittal, the Customs Department preferred
two appeals before the High Court. The learned Single Judge, Madurai
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS
DEPARTMENT [VIKRAM NATH, J.]
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Bench of the Madras High Court, by judgment dated 19.10.2019 recorded
conviction of all six accused under section 135(1)(a)(ii) read with 135A
of the Customs Act. However, it confirmed the acquittal under Section
132 of the Customs Act. Later on, by order dated 23.11.2019, it awarded
sentence as already mentioned in paragraph No.3. The judgment of the
High Court is a common judgment in both the appeals.
10. Aggrieved by the above conviction and sentence, the six
accused have separately approached this Court and have filed three
separate appeals (@ special leave petitions). Appellant No.1, Janarthanan
in appeals @ SLP (Crl.) Nos 833-34/2020 is reported to have died on
28.09.2021, as such the appeal stands dismissed as abated against him.
11. We have heard Mr. R. Basant and Mr. S. Nagamuthu, learned
senior counsel and Mr. K.K. Mani, learned counsel for the appellants
and Mr. Vikramjit Banerjee, learned Additional Solicitor General for the
respondent.
12. Mr. S. Nagamuthu, learned senior counsel for the appellants
raised a purely legal argument. He submitted that if this point, without
going into the merits, appeals to this Court it would entail an order of
remand to the High Court. He also reserved his other arguments on
merit in case he fails on the preliminary legal ground.
13. The submission is that the High Court proceeded to pass one
common judgment in both the appeals arising out of the two separate
trials and two separate judgments but considered the evidence of only
one case and that too without disclosing of which case so as to record
conviction of all the six accused in both the appeals. The High Court,
thus, committed a serious error of law in recording conviction at least in
one of the cases without considering the evidence recorded in the trial
of that case. According to Mr. Nagamuthu, this would be not only contrary
to settled principles of criminal jurisprudence, as also criminal justice
delivery system but also contrary to the statutory provisions contained in
the Code of Criminal Procedure1, the Indian Evidence Act and settled
law on the point. He has drawn our attention to various provisions of the
Cr.P.C.
14. Mr. Nagamuthu, learned senior counsel, in support of the above
proposition, has placed reliance on the following judgments:
1 Cr.P.C. for short
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(i) State of Kerala and Ors. vs. Joseph Alias Baby and
Ors.2; and
(ii) Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai
Patel and Ors.3
15. On the other hand, Mr. Vikramjit Banerjee, learned Additional
Solicitor General for the Customs Department although could not dispute
the submission that evidence of only one case has been considered while
deciding both the appeals, however, submitted that as the evidence in
both the cases were identical, no serious error could be alleged by the
appellants. He further submitted that no prejudice has been caused to
the appellants inasmuch as the evidence was same in both the trials.
The appellants, having failed to show any prejudice on account of the
above procedure adopted by the High Court, cannot claim any benefit
on technicalities. Mr. Banerjee relied upon the following judgments in
support of his submission:
(i)
Doat Ali and Ors. vs. Mahammad Sayadali and Anr.4 and
(ii)
Pedda Venkatapathi and Ors. vs. State5
16. In rejoinder, learned counsel for appellants submitted that it is
true that the witnesses examined in both the cases were same and the
documents filed were also the same but nevertheless the witnesses have
not been examined in the same sequence and nor the documents have
been proved and exhibited in the same order. In any case, the High
Court ought to have discussed the evidence of both the cases separately.
Maybe by a common judgement, it could have been decided but not
without independently dealing the evidence in both the trials.
17. We are, thus, proceeding to consider the preliminary issue.
18. The issue which thus falls for our consideration at this stage is
whether the evidence recorded in a separate trial of co-accused can be
read and considered by the appellate court in a criminal appeal arising
out of another separate trial conducted against another accused, though
for the commission of the same offence.
2 (2014) 16 SCC 385
3 (2018) 7 SCC 743
4 AIR 1928 Cal 230
5 AIR 1956 AP 96
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS
DEPARTMENT [VIKRAM NATH, J.]
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19. To consider and dissect this issue, we have to bear in mind
that fair trial is the foundation of the criminal justice delivery system and
there are certain guiding principles to ensure a fair trial against an accused.
The statutory arrangement of our criminal justice delivery system
encompasses few provisions in that regard under the Cr.P.C. and the
Evidence Act, 1872.
20. Section 273 of Cr.P.C. provides that except as otherwise
expressly provided, all evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the accused, or, when his
attendance is dispensed with, in the presence of his pleader. It would be
appropriate to reproduce the provision of section 273, which reads as
follows: -
273. Evidence to be taken in presence of accused. --
Except as otherwise expressly provided, all evidence taken in
the course of the trial or other proceeding shall be taken in
the presence of the accused or, when his personal attendance
is dispensed with, in the presence of his pleader.
Explanation- In this section "accused""includes a person
in relation to whom any proceeding under Chapter VIII has
been commenced under this Code.
21. The exception of this provision finds place in section 205 of
Cr.P.C. wherein personal attendance of accused is dispensed with and
he is permitted to appear by his pleader and also in section 299 of Cr.P.C.,
which provides for recording of evidence in the absence of the accused
under certain eventualities like absconding of accused or commission of
an offence punishable with death or imprisonment for life by some person
or persons unknown. However, this exception has few conditions to be
strictly followed by the trial court and prosecution. Besides such an
exception, the basic principle of recording evidence in presence of the
accused is imperative. For ready reference, sections 205 and 299 Cr.P.C.
are reproduced below: -
205. Magistrate may dispense with personal attendance of
accused.
(1) Whenever a Magistrate issues a summons, he may, if he sees
reason so to do, dispense with the personal attendance of the
accused and permit him to appear by his pleader.
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(2) But the Magistrate inquiring into or trying the case may, in his
discretion, at any stage of the proceedings, direct the personal
attendance of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore provided.
xxx xxx xxx
299. Record of evidence in absence of accused. -
(1) If it is proved that an accused person has absconded, and that
there is no immediate prospect of arresting him, the Court competent
to try [, or commit for trial] such person for the offence complained
of may, in his absence, examine the witnesses (if any) produced
on behalf of the prosecution, and record their depositions and any
such deposition may, on the arrest of such person, be given in
evidence against him on the inquiry into, or trial for, the offence
with which he is charged, if the deponent is dead or incapable of
giving evidence or cannot be found or his presence cannot be
procured without an amount of- delay, expense or inconvenience
which, under the circumstances of the case, would be
unreasonable.
(2) If it appears that an offence punishable with death or
imprisonment for life has been committed by some person or
persons unknown, the High Court or the Sessions Judge may direct
that any Magistrate of the first class shall hold an inquiry and
examine any witnesses who can give evidence concerning the
offence and any depositions so taken may be given in evidence
against any person who is subsequently accused of the offence, if
the deponent is dead or incapable of giving evidence or beyond
the limits of India.
22. Like-wise, section 278 of Cr.P.C. provides that as soon as the
evidence of each witness in a criminal trial is taken under section 275 or
276, it shall be read over to him in the presence of the accused, if in
attendance, or of his pleader, if he appears by pleader, and shall, if
necessary, be corrected. Section 279 of the Cr.P.C. also provides for
interpretation of evidence to the accused in open court, in case he is
present and such evidence is given in a language not understood by him.
For ready reference, sections 275, 276, 278 and 279 are reproduced
hereunder: -
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS
DEPARTMENT [VIKRAM NATH, J.]
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275. Record in warrant- cases.
(1) In all warrant- cases tried before a Magistrate, the evidence
of each witness shall, as his examination proceeds, be taken down
in writing either by the Magistrate himself or by his dictation in
open Court or, where he is unable to do so owing to a physical or
other incapacity, under his direction and superintendence, by an
officer of the Court appointed by him in this behalf.
[Provided that evidence of a witness under this sub-section may
also be recorded by audio-video electronic means in the presence
of the advocate of the person accused of the offence.]
(2) Where the Magistrate causes the evidence to be taken down,
he shall record a certificate that, the evidence could not be taken
down by himself for the reasons referred to in sub- section (1).
(3) Such evidence shall ordinarily be taken down in the form of a
narrative; but the Magistrate may, in his discretion take down, or
cause to be taken down, any part of such evidence in the form of
question and answer.
(4) The evidence so taken down shall be signed by the Magistrate
and shall form part of the record.
276. Record in trial before Court of Session.
(1) In all trials before a Court of Session, the evidence of each
witness shall, as his examination proceeds, be taken down in writing
either by the presiding Judge himself or by his dictation in open
Court or, under his direction and superintendence, by an officer of
the Court appointed by him in this behalf.
(2) 1 Such evidence shall ordinarily be taken down in the form of
a narrative, but the presiding Judge may, in his discretion, take
down, or cause to be taken down, any part of such evidence in
the form of question and answer.]
(3) The evidence so taken down shall be signed by the presiding
Judge and shall form part of the record.
xxx xxx xxx
278. Procedure in regard to such evidence when
completed.
(1) As the evidence of each witness taken under section 275 or
section 276 is completed, it shall be read over to him in the
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presence of the accused, if in attendance, or of his pleader, if he
appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence
when the same is read over to him, the Magistrate or presiding
Judge may, instead of correcting the evidence, make a
memorandum thereon of the objection made to it by the witness
and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from
that in which it has been given and the witness does not understand
that language, the record shall be interpreted to him in the language
in which it was given, or in a language which he understands.
279. Interpretation of evidence to accused or his pleader.
(1) Whenever any evidence is given in a language not understood
by the accused, and he is present in Court in person, it shall be
interpreted to him in open Court in a language understood by him.
(2) If he appears by pleader and the evidence is given in a language
other than the language of the Court, and not understood by the
pleader, it shall be interpreted to such pleader in that language.
(3) When documents are put for the purpose of formal proof, it
shall be in the discretion of the Court to interpret as much thereof
as appears necessary.
23. In the Evidence Act, 1872, section 33 provides relevancy of
certain evidence for proving, the truth of facts stated therein, in any
subsequent proceeding, according to which evidence given by a witness
is treated to be relevant in a subsequent proceeding or at a later stage in
the same proceeding under certain eventualities. It would be appropriate
to reproduce section 33, which reads as follows: -
33. Relevancy of certain evidence for proving, in subsequent
proceeding, the truth of facts therein stated. --
Evidence given by a witness in a judicial proceeding, or before
any person authorized by law to take it, is relevant for the
purpose of proving, in a subsequent judicial proceeding, or
in a later stage of the same judicial proceeding, the truth of
the facts which it states, when the witness is dead or cannot
be found, or is incapable of giving evidence, or is kept out of
the way by the adverse party, or if his presence cannot be
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obtained without an amount of delay or expense which, under
the circumstances of the case, the Court considers
unreasonable:
Provided -- that the proceeding was between the same parties
or their representatives in interest; that the adverse party in
the first proceeding had the right and opportunity to crossexamine; that the questions in issue were substantially the
same in the first as in the second proceeding.
Explanation. -- A criminal trial or inquiry shall be deemed
to be a proceeding between the prosecutor and the accused
within the meaning of this section.
24. In light of the statutory provisions discussed above, we now
proceed to deal with position in law concerning the issue.
25. So far as the law for trial of the cross cases is concerned, it is
fairly well settled that each case has to be decided on its own merit and
the evidence recorded in one case cannot be used in its cross case.
Whatever evidence is available on the record of the case only that has
to be considered. The only caution is that both the trials should be
conducted simultaneously or in case of the appeal, they should be heard
simultaneously. However, we are not concerned with cross-cases but
are concerned with an eventuality of two separate trials for the commission
of the same offence (two complaints for the same offence) for two sets
of accused, on account of one of them absconding.
26. A three-Judge Bench of this court in the case of Karan Singh
vs State of Madhya Pradesh6 was confronted with the question, as to,
whether, in view of the acquittal of the absconding co-accused in a
separate trial from which there had been no appeal, it was open to the
High Court to hold that the accused appellant was guilty of murder under
section 302 read with section 34 IPC. After considering the position of
law in that regard, A.K. Sarkar, J., speaking for the Bench, answered
the question in the following terms: -
"4. The only question argued in this appeal is whether in
view of the acquittal of Ramhans by the learned Sessions
Judge from which there had been no appeal, it was open to
the High Court to hold that the appellant was guilty of murder
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under S. 302 read with S. 34 by finding on the evidence that
Ramhans who shared a common intention with him, shot the
deceased dead and attempted to murder Ramchandra. In the
High Court reliance had been placed on behalf of the
appellant on the judgment of this Court in Pritam Singh v.
State of Punjab, (S) AIR 1956 SC 415 . That case referred
with approval to the judgment of the Judicial Committee in
Sambasivan v. Public Prosecutor, Federation of Malaya, 1950
AC 458 at p. 479, where it was observed that
"the effect of a verdict of acquittal... is not completely stated
by saying that the person acquitted cannot be tried again for
the same offence. To that it must be added that the verdict is
binding and conclusive in all subsequent proceedings
between the parties to the adjudication."
As the High Court pointed out, that observation has no
application to the present case as here the acquittal of Ramhans
was not in any proceeding to which the appellant was a party.
Clearly, the decision in each case has to turn on the evidence
led in it; Ramhans's case depended on the evidence led there
while the appellant's case had to be decided only on the
evidence led in it. The evidence led in Ramhans' case and the
decision there arrived at on that evidence would be wholly
irrelevant in considering the merits of the appellant's case.
We may add here that Mr. Misra appearing for the appellant
did not in this Court rely on Pritam Singh's case, (S) AIR 1956
SC 415 .
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We are, therefore, of opinion that the judgment in Krishna
Govind Patil's case does not assist the appellant at all. On
the other hand we think that the judgments earlier referred to
on which the High Court relied, clearly justify the view that
in spite of the acquittal of a person in one case it is open to
the Court in another case to proceed on the basis-of course
if the evidence warrants it that the acquitted person was guilty
of the offence of which he had been tried in the other case
and to find in the later case that the person tried in it was
guilty of an offence under S. 34 by virtue of having committed
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the offence along with the acquitted person. There is nothing
in principle to prevent this being done. The principle of
Sambasivam's case has no application here because the two
cases we are concerned with are against two different persons
though for the commission of the same offence.
Furthermore, as we have already said, each case has to be
decided on the evidence led in it and this irrespective of any
view of the same act that might have been taken on different
evidence led in another case." (Emphasis added)
27. In the case of Nirmal Singh vs State of Haryana7, this Court
discussed the scope and requirements of section 33 of the Evidence
Act, 1972 and section 299 of the Cr.P.C. and observed as follows: -
"On a mere perusal of Section 299 of the Code of Criminal
Procedure as well as Section 33 of the Evidence Act, we have
no hesitation to come to the conclusion that the pre- conditions
in both the Sections must be established by the prosecution
and it is only then, the statements of witnesses recorded
under Section 299 Cr.P.C. before the arrest of the accused
can be utilised in evidence in trial after the arrest of such
accused only if the persons are dead or would not be
available or any other condition enumerated in the second
part of Section 299(1) of the Code of Criminal Procedure is
established.."
28. Apart from above, we may usefully quote the opinion recorded
by S.B. Sinha, J., in the case of Jayendra Vishnu Thakur vs State of
Maharashtra8, which reads as follows: -
"18. The right of an accused to watch the prosecution
witnesses deposing before a court of law indisputably is a
valuable right.
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23. An accused is, however, always entitled to a fair trial. He
is also entitled to a speedy trial but then he cannot interfere
with the governmental priority to proceed with the trial which
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would be defeated by conduct of the accused that prevents it
from going forward. In such an event several options are open
to courts. What, however, is necessary is to maintain judicial
dignity and decorum. The question which arises for
consideration is whether the same will take within its umbrage
the said principle. We will examine the said question a little
later. We will proceed on the premise that for invocation of
the provisions of Section 299 of the Code the principle of
natural justice is inbuilt in the right of an accused.
24. A right to cross-examine a witness, apart from being a
natural right is a statutory right. Section 137 of the Evidence
Act provides for examination- in-chief, cross-examination and
re-examination. Section 138 of the Evidence Act confers a
right on the adverse party to cross-examine a witness who
had been examined in chief, subject of course to expression
of his desire to the said effect. But indisputably such an
opportunity is to be granted. An accused has not only a
valuable right to represent himself, he has also the right to be
informed thereabout. If an exception is to be carved out, the
statute must say so expressly or the same must be capable of
being inferred by necessary implication. There are statutes
like the Extradition Act, 1962 which excludes taking of
evidence viz-a-viz opinion. (See - Sarabjit Rick Singh v. Union
of India, [ (2008) 2 SCC 417 ].
25. It is also beyond any cavil that the provisions of Section
299 of the Code must receive strict interpretation, and, thus,
scrupulous compliance thereof is imperative in character. It
is a well-known principle of interpretation of statute that any
word defined in the statutory provision should ordinarily be
given the same meaning while construing the other provisions
thereof where the same term has been used. Under Section
3 of the Evidence Act like any other fact, the prosecution must
prove by leading evidence and a definite categorical finding
must be arrived at by the court in regard to the fact required
to be proved by a statute. Existence of an evidence is not
enough but application of mind by the court thereupon as
also the analysis of the materials and/or appreciation thereof
for the purpose of placing reliance upon that part of the
evidence is imperative in character."
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29. In this regard, another instance of requirement of joint trial for
admissibility of confession as provided under section 30 of Evidence
Act, 1872 may be noted. According to which when more persons than
one are being tried jointly for the same offence, and a confession made
by one of such persons affecting himself and some other of such persons
is proved, the Court may take into consideration such confession as
against such other person as well as against the person making such
confession. Section 30 of the Evidence Act is reproduced below:
"30. Consideration of proved confession affecting person
making it and others jointly under trial for same offence. -
When more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting
himself and some other of such persons is proved, the Court may
take into consideration such confession as against such other person
as well as against the person who makes such confession."
30. In the case of Raja @ Ayyappan vs. State of Tamil Nadu9,
this court was dealing with a case under the Terrorist and Disruptive
Activities (Prevention) Act, 1987 and was confronted with the issue in
respect of admissibility of confession of co-accused against another coaccused in a separate trial, when a joint trial could not be held on account
of him absconding. Abdul Nazeer, J., concluded the issue in the following
terms: -
"31. In the instant case, no doubt, the appellant was
absconding. That is why, joint trial of the appellant with the
other two accused persons could not be held. As noticed
above, Section 15 of the TADA Act specifically provides that
the confession recorded shall be admissible in trial of a
co-accused for offence committed and tried in the same case
together with the accused who makes the confession. We are
of the view, that if for any reason, a joint trial is not held, the
confession of a co-accused cannot be held to be admissible
in evidence against another accused who would face trial at
a later point of time in the same case. We are of the further
opinion that if we are to accept the argument of the learned
counsel for the respondent- State, it is as good as re-writing
the scope of Section 15 of the TADA Act as amended in the
year 1993.
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32. In Ananta Dixit v. The State reported in 1984 Crl. L.J.
1126, the Orissa High Court was considering a similar case
under Section 30 of he Evidence Act. The appellant, in this
case, was absconding.