Jackson, J.:— This petition raises a point of some importance. It will be seen on p. 23 that the depositions given by D.W 2 in a previous trial were read out to him and exhibited as evidence in the present case. This is precisely what I myself did in the case which was subject of appeal in Umar Hajee v. Emperor . A.I.R 1923 Mad. 32 when it was ruled that my action was fatally irregular.
2. Of course there is no’ objection to a witness being led, if both sides consent and the alternative and correct procedure according to that ruling would be for the Judge to copy out the previous depositions in his own hand.
You were examined at the previous trial?
You deposed that etc. etc.
and then the Judge is set busily to work for a few hours committing to paper what is already on paper. With the greatest respect I can see no necessity for this deplorable waste of time. The accused is in no way prejudiced. He can ask any supplementary questions he likes. He is present when these depositions are exhibited, so the rule in 2 Hawkins Pleas, Chap. 46 is not violated. As regards the implied consent, discussed on p. 120 I may say perhaps that the depositions were exhibited at the express request of the defence vakil as in the present case, I have never been able to understand this ruling and think it should be examined by a Bench.
3. [This case coining on for hearing on Thursday the 16th January 1930, in pursuance of the above order, upon perusing the petition and the judgments of the lower Courts and the records in the case and upon hearing the arguments of Mr. V.L Ethiraj and A.S Sivakamina than for the petitioners and the Public Prosecutor on behalf of the Crown and having stood over for consideration till this day. This Court made the following.]
4. This case arises out of a judgment in a criminal appeal in which the appellate Magistrate refused to reverse the conviction of the petitioners on the ground urged before him that the conviction was illegal because the trial Court had allowed certified copies of evidence given by the petitioners as defence witnesses in a counter case to be filed as evidence for the defence in this case. It is contended that the refusal of the appellate Magistrate is directly opposed to the ruling of a Bench of this Court in Umar Hajee v. Emperor.
5. On another ground raised it appears to us that the appellate Magistrate's judgment cannot be supported. He considered that Section 167 of the Evidence Act, did not compel him to order a retrial merely because these copies of depositions had been put in, since, to use his words:
“without the evidence thus admitted there is sufficient evidence to prove the charges.”
6. He seems to have entirely overlooked the fact that the evidence thus admitted, was for the defence and not for the prosecution. He has thus decided the case against the accused by the simple process of ruling out and refusing to consider the evidence for the defence. But it would not suffice for us merely to order him to re-hear the appeal, if under the law as it stands stated in Umar Hajee v. Emperor, he would still have to reject these depositions and order retrial. We therefore had the question argued before us whether the 46 Madras case applies here and if it does, whether it does not lay down too strict a procedure, and whether we should not have the case posted before a Full Bench to consider whether Umar Hajee v. Emperor case has been rightly decided.
7. We have perused the printed papers in the two cases which gave rise to the Umar Hajee v. Emperor judgment. A criminal trial had proceeded for some time against two persons in part before one Special Sessions Judge. It was then split up into two. That Judge was succeeded by another, who decided on a de novo trial. At the de novo trial the second Judge permitted the depositions of the prosecution witnesses taken at the original trial to be filed as evidence for the prosecution; whether this was done at the request or with the consent of the defence is not material. The evidence of the defence witnesses was taken entirely by the second Judge. Now the judgment in Umar Hajee v. Emperor proceeds on the general proposition that:
“in cases of life, no evidence is to be given against a prisoner, but in his presence”
subject to the exceptions permitted by some express provisions of law. It is clear from the facts as set out above that the Bench was dealing only with a case where previous depositions not taken in the presence of the accused were used as evidence against him. We think that the decision does not go further than to decide that, such a procedure is contrary to law, and if we may say so with respect, it embodies a very salutary principle, the principle upon which Reg v. Bertrand . [1867] 1 P.C 520 on which Umar v. Hajee Emperor relies, proceeded. In the latter case there was the additional infirmity that what was read over to the witnesses was not their actual depositions but only notes of those cases taken by the trying Judge. We do not think that Umar Hajee v. Emperor can be taken to having decided that evidence taken in favour of a prisoner in a counter case in which he was a witness but was not himself the prisoner cannot be put in by him on his own behalf.
8. In the case before us the deposition given by defence witnesses 2 and 3 when examined as prosecution witnesses in the counter case was filed with the consent of both sides. We do not think that Umar Hajee v. Emperor prohibits such a procedure, which obviously saves a great deal of time which would otherwise be occupied in merely copying down previous depositions. No one is prejudiced. Obviously the prisoner is not and if the, Crown had thought its case would be prejudiced, it would not have consented to the procedure.
9. Our attention has been drawn to a ruling of a Bench of the Lahore High Court in Thahar Singh v. Emperor . A.I.R 1927 Lah. 781. but, so far as we can gather the facts of the case, it appears that the defence witnesses were not summoned and examined in Court, but their previous depositions were put on the record without the witnesses coming to swear to their truth. The same procedure appears to have been adopted in the case reported in Allu v. Emperor . A.I.R 1924 Lah. 104. In the present case, however, the defence witnesses were called and examined in the presence of the accused and they swore to the truth of their previous statements, which were then filed with their consent to save time. In another case, Emperor v. Harjivan Valji* . A.I.R 1926 Bom. 231 at p. 178 (of 50 Bom.) a High Court Bench held that to file for the Crown depositions taken in one case as substituted evidence in another case against the same prisoner was merely an irregularity. But it may be noted that in that case all the depositions had been taken in the presence of the prisoner. We do not therefore think it necessary to refer this case to a Full Bench on the question of reconsidering the decision in Umar Hajee v. Emperor We hold on the facts here that there was nothing illegal or irregular in the procedure at the trial Court. However, as we have already remarked the appellate Magistrate has erred in refusing to consider that evidence recorded for the defence. We must therefore set aside his order and direct him to rehear the appeal and decide it after giving due weight to the evidence recorded in the previous depositions filed as Exs. 6, 6a, 7 and 9a. We order accordingly.
P.R.S/V.S
10. Order accordingly.