Divatia, J.:— [After setting out the facts, his Lordship proceeded:] The prosecution had examined the Mamlatdar in the committing Magistrate's Court and he had produced certain correspondence to the effect that accused 2 was suspected of having committed several defalcations as the talati of Lambha. This Mamlatdar was not examined in the Sessions Court, and the Sub-Inspector stated in his evidence that the Mamlatdar was not in Ahmedabad when the trial was going on before the Sessions Court as he had gone to Bombay for training in rationing and that he would not be able to return for a week. It was only on the strength of that evidence that the learned Sessions Judge brought on record the Mamlatdar's evidence before the committing Magistrate under Section 33 of the Evidence Act, 1872, and he seems to have done so readily because the defence advocates had no objection to its being brought on the record. Along with the evidence of the Mamlatdar the learned Judge admitted in evidence also the various documents which he had produced in the committing Magistrate's Court. The prosecution mainly relied on that evidence for proving motive for the crime, viz the defalcations committed by accused 2.
2. It is at this stage necessary to examine whether the deposition of the Mamlatdar was legally admissible in evidence in the Sessions Court. Under Section 33 of the Evidence Act, evidence given by a witness in a judicial proceeding is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states when the presence of the witness cannot be obtained, among other reasons, without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Now, the only ground on which the learned Judge admitted the evidence of the Mamlatdar was that he had gone to Bombay for taking training in rationing and would not return within a week. That ground is, in my opinion, utterly inadequate for satisfying the provisions of S. 33. The Mamlatdar could have been summoned to appear at Ahmedabad for a day. It is only a night's journey from Bombay to Ahmedabad and there is nothing to show that he would not have been released from his work in Bombay for a day. In any case the case could have been adjourned for a week. The accused had not cross-examined him in the committing Magistrate's Court and they lost that opportunity at the trial. As a result, his untested deposition and the correspondence became part of the evidence against the accused. The learned Judge did not record any reasons to show that he was satisfied that the Mamlatdar's presence could not be procured without undue expense or delay. In my opinion, he ought to have recorded the reasons if he was so satisfied so that the appellate Court could see whether the section was properly applied. The fact that the advocates for the defence consented to the deposition of the Mamlatdar being brought on the record cannot make it admissible if if is not otherwise so. An apposite authority on this point, with which I agree, in the decision in 39 Mad. 4491. Certain evidence was there admitted under s. 33 without its provisions being complied with. It was held that before admitting a deposition given on a previous occasion, a Judge must satisfy himself that the presence of the witness cannot be obtained without an amount of delay or expense which he considers to be unreasonable; that it is not enough to have the statement of the Public Prosecutor to that effect and even consent or want of objection on the part of the accused's pleader to the reception of such evidence will not, in spite of Section 58 of the Evidence Act, entitle the Court to admit it under s. 33. That is exactly the circumstance in the present case also. It was further held in that case that where a Sessions Judge convicted the accused relying mainly upon such inadmissible evidence as above described and did not warn the jury against acting on the same, the conviction would be set aside as illegal. In the present case also the learned Judge in his summing up to the jury placed before them the Mamlatdar's evidence and also the correspondence which he had produced in proof of the prosecution case about motive. We do not know that the jurors did not act upon this evidence when they brought in a verdict of guilty. It is most probable that their minds were influenced by the Mamlatdar's deposition and the correspondence showing defalcations by accused 2, because as against him the only evidence worth the name was that of the confession of accused 1, and the evidence of motive mainly consisting of the deposition of the Mamlatdar and the documents which he produced. As regards accused 1 also the question of the motive for the crime would be a relevant fact, and it is therefore probable that the verdict against him also might have been influenced by that evidence. In these circumstances the only result, in my opinion, is that as held in 39 Mad. 449 the conviction based upon such a verdict is illegal and must be set aside. As to what should happen on the setting aside of the verdict, we have a recent decision of our High Court in 35 Bom. L.R 1742. It is held there that in the case of a trial by jury, the appellate Court has power, in the event of any misdirection or admission of inadmissible evidence, either to convict or acquit the accused according as the evidence is or in not sufficient for conviction; or, where the facts have to be determined and the evidence is of such a character as to render it difficult to pronounce any opinion on its character without hearing the witnesses, a new trial may be ordered. It is true that on this point there is a difference of opinion between the High Courts, but we are bound by the view taken by our Court, that it is open to the appellate Court, if it thinks proper on, the facts before it, to convict or acquit the accused according as the admissible evidence is or is not sufficient. We have considered this position on the evidence in the present case, and we think that on the facts proved it is not necessary to direct a new trial of the two accused, because in our opinion accused 1 is guilty on the admissible evidence and there is reasonable doubt whether any new evidence of motive can go to corroborate the confession of accused 1 against accused 2. We have, therefore, appreciated the evidence apart from the verdict of the jury, and have heard the learned advocates on behalf of both the accused on the whole of the admissible evidence in the case. [After dealing with the evidence his Lordship continued:]
3. Now, before I go to the nature of the confession, I desire to make some observations about the manner in which it was taken. It appears on the evidence that this accused did desire to make a confession on the evening of the 22nd after the pyjama and the stick were produced by him. The Sub-Inspector of Police, however, says that although the accused had expressed on the 22nd a desire to confess, he took him to the Magistrate for remand on the 23rd, because for completing the investigation it was necessary to have the accused on remand. It may be noted here that when this accused, along with accused 2, was produced before the Magistrate on the 23rd, the Magistrate was not informed that accused 1 had expressed his desire to confess on the previous day. The Magistrate put some questions to him whether he was beaten by the police, and on his answering in the negative, he sanctioned a remand for six days. Under section 164 of the Cr PC, when an accused person desires to make a confession, he should be brought before the Magistrate and the confession should be taken by him after taking care that no policeman was present in Court. Although the section does not say anything as to when the accused can be brought before the Magistrate after he shows his willingness to confess, there is no doubt on general principles that the accused must be sent to magisterial custody as soon as he expresses such willingness. It may be that the police might not have at that time started any investigation or that the investigation might be incomplete, but, in my opinion, there is no justifiable reason why the police should keep an accused person in their custody for several days after they know that he wanted to confess, merely on the ground that his presence was necessary for further investigation. As observed by the Calcutta High Court in 52 Cal. 673 (p. 94):
“… ill prisoner wishes to make a voluntary statement, the police must produce him before a Magistrate and let him to do it whatever might be ts character. Delay in producing prisoners, who are willing to have their confessions recorded, has been always held to affect the value of the confessions: 15 C.W.N 5934.”
4. In all cases where the investigation by the police is either conducted or continued after the accused expresses his desire to confess, and if ultimately after the investigation is over the accused does make a confession, there would not be an unreasonable ground for apprehension that the confession was made to fit in with the result of investigation so that it may be regarded as having been corroborated. For that reason it is necessary that the accused should be sent to the Magistrate as soon as he expresses his desire to confess. The learned Government pleader has contended that the police kept the accused with them because they thought that once he was sent to the Magistrate for recording his confession, he would not be returned to the police custody. But that is not so. The Circular Orders issued by our High Court contain a provision that after a prisoner had made a confession, he should ordinarily be committed to jail, and that the Magistrate should note on the warrant for the information of the Superintendent of the Jail concerned that the prisoner had made a confession. It is further provided that
“It is not feasible absolutely to prohibit the return of a prisoner to police custody after he had made a confession. An absolute prohibition of remands to police custody in such cases is impracticable, since the prisoner may be required to identify persons or property, to assist at the discovery of property or, generally to be present while his statement is being verified. But it is desirable that discrimination should be used in the exercise of the power to remand.”
5. In a proper case therefore it would be certainly open to the police to request the Magistrate to hand over the accused to the police custody for conducting or continuing the investigation. We think it necessary that the attention of the Magistrates as well as police officers should be drawn to the desirability of sending the accused before the Magistrate as soon as he expresses his desire to make a confession, and that the Magistrate, at the time of recording the confession, should ascertain when the accused first expressed his willingness to confess and to record it in the confession. (His Lordship then dealt with the evidence against accused 1 and proceeded.) In our opinion, therefore, the blood marks on the pyjama as well as the stick certainly go to corroborate the confession, and there is no doubt that both these articles had been produced by this accused himself in the presence of the panchas. There being therefore sufficient corroboration of the confession, the conviction based on that evidence, apart from the other inadmissible evidence in the case, is, in our opinion, justified, and, therefore, accused 1 must be held guilty of the offence of murder of the deceased talati.
6. As regards accused 2, as I said before, the oral evidence of Jetha has to be entirely rejected, and there only remains the confession of accused 1 and the evidence of motive for whatever it is worth. Even with regard to this evidence of motive, after rejecting the evidence of the Mamlatdar in the committing Magistrate's Court and the documents which he produced, there remains only one document on which the prosecution rely, viz., Ex. 49, which consists of a report made by a revenue servant about certain defalcations alleged to have been made by accused 2. But that again, even if relied upon, would not necessarily establish a strong corroborating circumstance of the confession of a co-accused. As observed in 1 Bom. L.R 4285 the evidence of motive for a murder would not take the place of evidence of identification, nor would it afford corroboration of the confession. The evidence of motive, after all, is not direct but indirect evidence, and can be regarded only as one of the factors to corroborate the other direct evidence or very strong circumstantial evidence in the case.
7. The prosecution relied on the fact that accused 2 came to the village Lambha and remained present at the time when the inquest was being carried out. That by itself also would not necessarily imply that he came there in order to conceal his own crime. No doubt the police took several records from the house of accused 2 at Ahmedabad some of which might show that certain defalcations had been made, but even so, the defalcations by themselves would not go to corroborate the confession of the co-accused. The confession, of a co-accused is not in any way substantive evidence against the other accused. At the most, it can be considered, along with the other evidence. In the present case, however, there is no evidence with which it might be considered, and the evidence of motive cannot by itself be regarded as a material corroboration of the confession of Accused 1. I am, therefore, of the opinion that the prosecution has not succeeded in establishing the guilt of accused 2. The conviction of this accused for the offence of abetment of murder must be set aside. As a result, the conviction as well as the sentence of accused 1 is confirmed and his appeal is dismissed. The conviction as well as the sentence of accused 2 is set aside, and he is acquitted and discharged.
8. Lokur, J.:— I agree and wish to add a few words on the different points of law which have been raised and argued at length in these appeals. There is no doubt that the statement of the Mamlatdar recorded before the committing Magistrate was wrongly admitted in the Sessions Court under section 33 of the Evidence Act. The Mamlatdar is still living, and before his former statement could be admitted in evidence, the Court must decide judicially that proper effort had been made on behalf of the prosecution to secure his presence, that in spite of that effort he had not been traced or could not be found out or that he was incapable of giving evidence or was kept out of the way by the adverse party, or that his presence could not be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considered unreasonable. None of these conditions is satisfied in the present case. The evidence of the Sub-Inspector Ratan sing shows that the Mamlatdar had gone to Bombay for training in rationing and would not be able to return to Ahmedabad for a week. There is nothing on the record to show that he was summoned and had expressed his inability to go to Ahmedabad even for a day to give evidence in the case. Even in that case the hearing might have been adjourned for a week if his evidence was considered essential. It does not appear from the record that the learned Sessions Judge applied his mind to the requirements of Section 33 of the Evidence Act, before admitting his statement before the committing Magistrate, since both the parties gave their consent to it. It is true that a Full Bench of the Madras High Court has held in 43 Mad. 6096 that such consent would cure a similar irregularity in a civil suit. But that would not be so in a criminal trial. So far back as in 1867 the Privy Council in (1867) L.R 1 P.C 5207 referred to “the common understanding in the profession, that a prisoner can consent to nothing” in regard to a consent to an irregularity very similar to that now under consideration, “and gave exhaustive reasons in support of the insistence on the evidence in criminal trials being taken viva voce in the presence of the accused, and the Indian Evidence Act, which was passed five years later, provided for certain exceptions to that rule. It was definitely held in 39 Mad. 449 that the consent or want of objection on the part of the pleader for the accused to the reception of such inadmissible evidence would not, in spite of Section 58 of the Evidence Act, entitle the Court to admit it under section 33.
9. In this case the learned Sessions Judge has passed no order regarding the admission of “the Mamlatdar's statement before the committing Magistrate, nor are any reasons given in the rojnama to indicate why it was admitted and exhibited. As observed in 20 W.R Cr. 698 the ground for the admission of the evidence of an absent witness should be stated fully and clearly to enable the appellate Court to judge of the propriety of its admission. The learned Judge has no doubt referred in his charge to the jury to the consent of the parties as a reason for admitting it in evidence, but, in my opinion, it is far preferable, especially in appealable cases, that the Sessions Judge or the Magistrate should record a separate order giving his reasons for holding that the necessary conditions laid down in Section 33 of the Evidence Act, have been complied with before such evidence is placed on record. In this connexion I will quote the observations made by Lentaigne J. in 1 Rang. 5129 (p. 515):
“The section presupposes a consideration of the grounds for the admission of the deposition prior to the admission of the evidence, and if the grounds and reasons are recorded prior to the admission of the deposition as evidence, the order constitutes a more convincing proof of the considered adequacy of the grounds than a passage in a judgment subsequently written which in a case near the border line might easily assume the appearance of a subsequent statement of excuses for a previous ill-considered action. A Sessions Judge, who had properly admitted such evidence in a number of proper cases, might erroneously assume a later instance to be within the rule, and if in such a case he admitted the evidence as a matter of course, without recording his reasons at the time, he might only discover the doubts after the erroneous step had been overhastily taken and when it might be too late to rectify the error by the production of other evidence.”
10. The same view was expressed in A.I.R 1943 Cal. 22210. I would, therefore, recommend that a separate order should always be passed permitting admission of the evidence under Section 33 of the Evidence Act, and setting out the reasons for doing so, which is necessary to show that the Court has judicially decided that the conditions laid down in that section have been fulfilled. In the present case these conditions admittedly had not been fulfilled, and as the consent of the accused cannot cure the irregularity, it must be held that the Mamlatdar's statement before the committing Magistrate was wrongly admitted in evidence.
11. That evidence should never have been placed before the jury. The Mamlatdar's evidence consists not only of his own testimony, but also of other documents which he produced and proved. Those documents also must, therefore, be excluded from the evidence, and the learned Government Pleader very fairly conceded that if they go out of the record, the case of the prosecution would be so crippled that he would not be able to support the conviction of at least accused 2. As held in. 27 Bom. 62611, if the jurors are placed in possession of material evidence which ought not to have been admitted, there is an error of law in the trial amounting to a misdirection. Section 587 of the Cr PC, provides that 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 misdirection in any charge to a jury unless such misdirection has in fact occasioned a failure of justice. In the present case the testimony of the Mamlatdar and the documents produced by him are material evidence and the accused are undoubtedly prejudiced by their being erroneously placed before the jury for consideration. That has evidently caused a failure of justice and the verdict must, therefore, be set aside.
12. The verdict being thus set aside, Mr. Khandalawalla, the learned counsel for accused 2, requests us to go into the evidence and decide whether the guilt of the accused is proved. He is prepared even to go so far as to anticipate that on a re-trial the Mamlatdar will be examined and will prove the documents produced by him, and contends that even if all that evidence be taken into consideration, the conviction of accused 2 cannot be sustained. On the other hand, Mr. Shah for accused 1 insists that there should be a re-trial and relying upon the rulings in 21 Cal. 95512 and 46 Cal. 89513 he says that the accused should not be deprived of their right to have a trial by jury, and we, sitting in appeal, cannot substitute our own verdict for that of the jury. I may with respect state at once that these rulings are no longer to be treated as laying down the law correctly. Section 167 of the Evidence Act, lays down that —
“The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.”
13. As pointed out by Jardine, J. in 19 Bom. 74914 at p. 762 the words “in any case” used in this section are wide and have all along been interpreted as including criminal trials. He dissented from the view taken by the Calcutta High Court and held that when part of the evidence, which had been allowed to go to the jury, was found to be irrelevant and inadmissible, it was open to the High Court in appeal either to uphold the verdict upon the remaining evidence on the record under Section 167 of the Evidence Act, or to quash the verdict and order a re-trial. The same view was taken in 35 Bom. L.R 174 and the Calcutta High Court also has come round to that view, and in 58 Cal. 9615 after considering the earlier cases of that Court, Pearson and Patterson, JJ. observed (page 109):
“On the other hand, it is to be observed that there is nothing in the language of the Code to differentiate the way in which the powers of the Court are to be exercised according as it is a jury trial or not; the language is wide enough and comprehensive enough to enable the Court to deal with the matter itself on an appeal, though in a jury trial. If, as we hold, there has, been misdirection, and the Court is of opinion that the verdict of the jury is erroneous, owing to that misdirection, and that it has, in fact, occasioned a failure of justice, there is no reason why in a proper case, the Court may not assume to deal with the whole case itself, under the powers and duty conferred upon it by law.”
14. Although the law is well settled by the decisions of this Court in 19 Bom. 749 and 35 Bom. L.R 174, Mr. Shah for accused 1 has drawn our attention to the decision in 10 Bom. H.C.R 49716 where, according to him a contrary view has been expressed, and he contends that as that decision is of a Division Bench of this Court, we should prefer to follow that ruling. But I do not think that there is anything in that decision which conflicts with the view taken in the cases already cited. The passage relied upon runs thus (p. 501):
“The adjudication on questions of fact in such cases appears to have been left by the Legislature … in the hands of a jury in those districts in which the local Government directs trials of offences to be held by jury; and if we were to deal with this case as we should do in the ordinary case of a trial with assessors, we should be encroaching upon the functions assigned to a jury. If, indeed, we could say that there was no evidence to go to the jury on which a conviction could reasonably be based, we might fulfil out duty by simply reversing the convictions and sentences. If, on the other hand, we were quite satisfied that, independently of the evidence improperly admitted, there was sufficient evidence to justify the decision, or, in other words, that the prisoners had not been prejudiced by the admission of the illegal, evidence, then having regard to the provisions of Section 167 of the Evidence Act, 1872, we should not interfere.”
15. After these observations it was found in that particular case that the evidence remaining after the exclusion of the inadmissible evidence, on which a jury might, not unreasonably find the accused guilty, did not seem to be conclusive of their guilt, and it was thought proper to reverse the conviction and order a new trial. All possible alternatives were considered there and the view taken is perfectly in consonance with the view expressed in 85 Bom. L.R 174. No hard and fast rule can be laid down and the course to be adopted must depend upon the circumstances of each particular case. Ordinarily when the verdict of the jury is set aside on the ground that it is vitiated by the erroneous admission of inadmissible evidence which has caused a failure of justice, the appellate Court should go into the evidence on its merits, and if the evidence which is legally admissible, is by itself sufficient to justify a conviction, then it can and should uphold the conviction. On the other hand, even after the evidence, which is inadmissible, is made admissible and brought on record at the re-trial the evidence is considered insufficient to warrant the conviction, then the accused should be acquitted, and should not be subjected to the needless ordeal of a re-trial. But if the appellate Court feels a reasonable doubt as to what the verdict of the jury might be after the defect which vitiated its verdict is removed, or when it is thought that much depends upon the impression made upon the jury by the witnesses and the accused in their statements then the proper course would be to order a retrial. From that point of view we have fully heard the arguments on both the sides and are satisfied that there is no need to order a re-trial.
16. As regards accused 2, the only evidence to connect him directly with the murder is the retracted confession of Accused 1; the rest of the evidence including the statement of the Mamlatdar and the documents produced by him being directed to prove his alleged motive for the murder. Although the learned Sessions Judge in his charge to the jury started with a correct exposition of the law regarding the use of the confession of one accused against the co-accused, the trend of his subsequent discussion was to lead the jury to think that they could-convict accused 2 on the strength of the retracted confession of accused 1 if they believed it and found it to have been sufficiently corroborated in material particulars. But as held in 88 Bom. L.R 112217 the confession of a co-accused is not strictly evidence against the other co-accused, and, unlike the evidence of an accomplice, cannot form the basis of the prosecution case. It is recorded behind the back of the co-accused, it is not taken on oath, it is not tested by cross-examination, and its truth is denied by the maker himself. Section 30 of the Evidence Act, permits the confession made by one accused affecting himself and some other accused tried along with him to be proved and it may be taken into consideration against such other persons as well as against the person who makes such confession. The language of this section is guarded and was designedly framed in these terms.
17. While admissions, which word includes confessions, are, under S. 21, “relevant” and may be proved as against the person making them, all that s. 30 provides, is that the Court may take them into consideration as against such persons. This distinction is significant and its effect is the Court can only treat a confession as lending assurance to the other evidence against the co-accused. But in this case the only other evidence is regarding the alleged motive for the murder and is aimed at showing that accused 2 had a strong motive to commit the murder. Assuming that such a motive is proved, it is no evidence that he did instigate accused 1 to commit the murder, and cannot be regarded as sufficient corroboration of the confession of Accused 1: vide, 1 Bom. L.R 428. I, therefore, agree that accused 2 should be acquitted on the ground of want of evidence. As regards accused 1, his confession, though retracted, is sufficiently corroborated in mate, rial particulars. I have no doubt that it was made voluntarily, and I agree that his conviction should be upheld. I have nothing to add to the reasons given by my learned brother. I, therefore, concur in the order proposed by him.
18. Order accordingly.