A. T. Mydeen vs The Assistant Commissioner … on 29 October, 2021


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Supreme Court of India

A. T. Mydeen vs The Assistant Commissioner … on 29 October, 2021

Author: Dinesh Maheshwari

Bench: Dinesh Maheshwari, Vikram Nath

                                                                REPORTABLE

                                  IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NO. 1306 OF 2021
                         @ SPECIAL LEAVE PETITION (CRL.) No. 374 of 2020

          A.T. MYDEEN AND ANOTHER                           ...APPELLANT(S)
                                             VERSUS
          THE ASSISTANT COMMISSIONER,
          CUSTOMS DEPARTMENT                               ...RESPONDENT(S)

                                              WITH

                   CRIMINAL APPEAL NOS. 1307-1308 OF 2021 @
                 SPECIAL LEAVE PETITION (CRL.) Nos. 372-373 of 2020

          A. DHANAPAL                                        ...APPELLANT(S)

                                               VERSUS

       THE ASSISTANT COMMISSIONER                          ...RESPONDENT(S)

                                            AND WITH
                    CRIMINAL APPEAL NOS. 1309-1310 OF 2021 @
                 SPECIAL LEAVE PETITION (CRL). Nos. 833-834 of 2020

          JANARTHANAN                                   ...APPELLANT(S)
                                             VERSUS

          THE ASSISTANT COMMISSIONER,
          CUSTOMS DEPARTMENT, TUTICORIN                  ...RESPONDENT(S)
Signature Not Verified

Digitally signed by
Anita Malhotra
Date: 2021.10.29
16:14:49 IST
Reason:




                                                1
                       JUDGMENT

VIKRAM NATH, J.

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 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.

2

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/-.

3

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 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:

4

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.

5

9. Aggrieved by the acquittal, the Customs Department

preferred two appeals before the High Court. The learned Single

Judge, Madurai 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.

6

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.

1 Cr.P.C. for short

7

14. Mr. Nagamuthu, learned senior counsel, in support of the

above proposition, has placed reliance on the following

judgments:

(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.

2 (2014) 16 SCC 385
3 (2018) 7 SCC 743

8
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. State 5

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

4 AIR 1928 Cal 230
5 AIR 1956 AP 96

9
against another accused, though for the commission of the

same offence.

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.

10

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.

(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

11
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

12
reference, sections 275, 276, 278 and 279 are reproduced

hereunder: –

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

13
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 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.

14
(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 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 cross-examine; 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.

15

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 Pradesh 6 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

6 AIR 1965 SC 1037

16
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 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 .

……………….

…………………………………

17
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
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

7 (2000) 4 SCC 41

18
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.

……………………………….

………………………………………….

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 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 curved 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.

8 (2009) 7 SCC 104

19
(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.”

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. –

20

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 co-accused 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 coaccused 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 coaccused 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.

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
9 (2020) 5 SCC 118

21
appellant, in this case, was absconding. The question
for consideration was whether a confession of one of
the accused persons who was tried earlier, is
admissible in evidence against the appellant. The
Court held that the confession of the co-accused was
not admissible in evidence against the present
appellant. The Court held:

“7. As recorded by the learned trial Judge, the
accused Narendra Bahera, whose confessional
statement had been relied upon, had been tried
earlier and not jointly with the appellant and the co
accused person Baina Das. A confession of the
accused may be admissible and used not only
against him but also against a co-accused person
tried jointly with him for the same offence. Section
30
applies to a case in which the confession is made
by accused tried at the same time with the accused
person against whom the confession is used. The
confession of an accused tried previously would be
rendered inadmissible. Therefore, apart from the
evidentiary value of the confession of a co-accused
person, the confession of Narendra Behera was not
to be admitted under Section 30 of the Evidence Act
against the present appellant and the co-accused
Baina Das.”
We are in complete agreement with the view of the
High Court.

33. We are of the view that since the trial of the
other two accused persons was separate, their
confession statements (Ex.P26 and P27) are not
admissible in evidence and the same cannot be
taken as evidence against the appellant.”
(Emphasis added)

31. Mr. S. Nagamuthu, relied upon the judgment of this Court in

the case of State of Kerala and Others vs. Joseph Alias

Baby and Others (supra). In the said case, the High Court

had considered the evidence of one Sessions case which tried

some of the accused in another Sessions case which was trying

22
another set of co-accused arising out of same offence and

acquitted all the accused. This Court, in paragraph 7 of the

report, was of the view that the High Court was not right in

considering the evidence of one case for another case and

accordingly set aside the judgment of the High Court and

remanded the matter to the High Court for fresh disposal.

Relevant portion of Paragraph 7 is reproduced below: –

“7……….The High Court ought to have considered
the facts of each case and decided the appeals in
accordance with law and in the absence of such
consideration by the High Court, it will not be proper
for us to decide on the culpability of each of the
respondent-accused in these appeals. We therefore,
set aside the impugned common judgment of the
High Court and remand the matters back to the High
Court for fresh disposal in accordance with law.”

32. The other judgment relied upon by Mr. Nagamuthu is

Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai

Patel and Others, (supra). In the above case also, two

accused namely, accused Nos.16 and 17 were tried separately

as they were absconding. Their trial was registered as Case

No.58 of 1998. The Trial Court had recorded the acquittal of

both the accused. Interestingly, in Sessions Case No.58 of

1998, no evidence was recorded independently. The Trial Court

had proceeded to record acquittal relying upon the evidence

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recorded in the earlier Sessions Case No.11 of 1992 which was

trying separate set of co-accused. Recording the above fact,

Chelameswar, J., observed in paragraphs 47 and 48,

regarding impermissibility of the procedure adopted by the Trial

Court with respect to judgment in Sessions Case No. 58 of

1998. The said paragraphs are reproduced hereinafter: –

“47. In Sessions Case No. 58 of 1998 against A-16
and A-17, no evidence was recorded independently.
On the other hand, the evidence recorded in Sessions
Case No.118 of 1992 was marked as evidence in
Sessions Case No.58 of 1998. The Evidence Act, 1872
does not permit such a mode of proof of any fact
barring in exceptional situations contemplated in
Section 33 of the Evidence Act.

48. There is no material on record to warrant the
procedure adopted by the Sessions Court. On that
single ground, the entire trial of Sessions Case NO.58
of 1998 is vitiated and is not in accordance with
procedures established by law. It is a different matter
that both the accused put to trial in Sessions Case
No.58 of 1998 were acquitted by the Fast Track Court
and the High Court did not interfere with the
conclusions recorded by the Fast Track Court.”

33. Mr. Vikramjit Banerjee, learned Additional Solicitor General,

as an officer of the Court, has referred to two judgments.

According to him, in both the said cases, the evidence

considered of another case was different and not part of the

other case. He, therefore, submitted that in such a situation

prejudice could be alleged by the suffering party that he had no

24
opportunity, for that, such evidence was impermissible. The

first judgment is in case of Doat Ali and Others vs.

Mahammad Sayadali and Another, (supra). In this case

also, there were two separate trials and the accused were

convicted by the Trial Court in both the cases. The Additional

Sessions Judge heard both the appeals together as one case

and made up his mind that there were two contradictory stories

and, on that basis, he allowed one appeal and dismissed the

other. Rankin, C.J., in his judgment observed that the duty of

the learned Judge was to keep each appeal absolutely separate

and to deal with it on its own merits confining himself to the

evidence given in that case and in that alone and accordingly

remanded the matter to the Appellate Court for a fresh decision

in both the cases.

34. The other judgment relied upon by Mr. Banerjee is Pedda

Venkatapathi and Others vs. State, (supra). This case also

had similar facts where the Appellate Court i.e. Sessions Judge

had used the evidence recorded in one case against the other

accused in other case and vice-versa. Relying upon Doat Ali

and Ors. vs. Mahammad Sayadali and Another (supra),

learned single Judge of the Andhra Pradesh High Court, set

25
aside the judgment of the Sessions Court and directed for re-

hearing of the two appeals.

35. The submission of Mr. Banerjee is that in these two

judgments as the evidences were different and it had been read

and relied upon, the accused could allege prejudice but in the

present case, as the evidence is the same in both the cases, no

prejudice can be alleged. Whether prejudice or not, the fact

remains that 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.

36. Further, it would be worthwhile to mention here that 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. The following chart will show

the specific sequence numbers of the witnesses in both the

trials as well as the exhibit numbers of the documents filed and

proved in both the trials. The chart reads as follows: –

“LIST OF WITNESSES

26
CC No.2/2003 Name of Witness CC 4/2004
(Dhanapal and (Alexander)
others)
PW1 Selvaraj PW1
PW2 Kalaimani PW4
PW3 Shree Ram PW5
PW4 Sankaralingam PW2
PW5 Sundararajan PW3
PW6 Mylerum Perumal PW6
PW7 Balraj PW7

LIST OF DOCUMENTS
CC No.2/2003 Documents Marked CC 4/2004
(Dhanapal and (Alexander)
others)
Ext. P1 Sanction Order Ext. P5
Ext. P2 Mahazar (Seizure-Godown) Ext. P2
Ext. P3 Statement of Rahman Sait Ext. P7
Ext. P4 Statement of Janarthanan Ext. P8
Ext. P5 Statement of Ramesh Ext. P9
Ext. P6 Statement of Mydeen Ext. P11
Ext. P7 Mahazar (Search – Godown) Ext. P12
Ext. P8 Statement of Hari Gangaram Ext. P1
Ext. P9 Identity Card of Rajan Ext. P2
Ext. P10 Mahazar (Seizure – Room) Ext. P3
Ext. P11 Statement of Mahadevan Ext. P4
Ext. P12 Adjudication Order Ext. P13
Ext. P13 Shipping Bill Ext. P10

Judicial Exhibits
Marked Judicial Report Not marked

37. Now, 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-in-chief of all the seven witnesses in

27
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 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.

38. We cannot proceed on presumption and assume that

everything was identical word to word. We are therefore, not

inclined to accept the submission of Mr. Banerjee and in fact

both the judgments relied upon by Mr. Banerjee having similar

facts as the present case lay down the same proposition of law

that evidence of one trial can be read only for the purposes of

the accused tried in that trial and cannot be used for any

accused tried in a separate trial. The view taken by the Calcutta

28
High Court in 1928, expressed by Rankin, C.J., has been

appropriately followed and accepted and is the correct view.

39. The provisions of law and the essence of case-laws, as

discussed above, give a clear impression that 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, as noted above.

40. The essence of the above synthesis is that 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 co-accused, who has been tried on the basis of

evidence recorded in a separate trial, though for the

commission of the same offence.

29

41. 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.

42. 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.

30

43. There is one more angle to be considered i.e. whether to

remand one case to the High Court for fresh decision i.e. the

case in which the evidence was not considered and we may

proceed to decide the other case here. We find, if we adopt

such a procedure, then no fruitful purpose would be served and

in fact, it would be an exercise resulting in complications and

contradictions and even conflicts. If we proceed to hear one

appeal wherein the evidence has been considered by the High

Court and we agree with the same, then it would influence the

High Court in deciding the other matter on remand. Further,

even if we could hold back this appeal and await decision of the

High Court in the matter which we remand, then also the High

Court would not be able to take an independent decision and

would be influenced by the judgment as we would be

entertaining one appeal. Moreover, if we allow one of the

appeals which we are holding back, then, nothing may remain

for the High Court to decide.

44. There is another reason why we are inclined to send back

both the matters to the High Court which is fundamental. We

find that the learned single Judge of the High Court has

apparently not adopted the correct procedure prescribed under

31
law and therefore, the judgment of the High Court needs to be

set aside. 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 and in light of the discussion and observations made

above.

45. We make it clear that all the questions of law and fact

would remain open before the High Court and the parties would

be free to address the High Court on all issues both on law and

facts.

46. Accordingly, the appeals are allowed. Judgment of the High

Court passed on 19.10.2019 is set aside. The appeals shall be

heard by the High Court afresh in the light of the observations

made above.

………….…………………….J.

[Dr. D.Y. CHANDRACHUD]

……….……………………….J.

32
[VIKRAM NATH]

………………………………..J.

[B.V. NAGARATHNA]

NEW DELHI
OCTOBER 29,2021.

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