KOTTAMMAL KALATHINGAL UMAR HAJEE Vs. KING-EMPEROR

JUDGEMENT

(1.) These two appeals can be decided on the same preliminary point. To take first Appeal No. 581 of 1922, the accused (appellant) has been convicted of various offences in connexion with the Mappilla rebellion. In the first instance he and his father were placed on trial together before the Special Judge, Mr. Edgington. But, after the trial had proceeded for sometime, it was decided to hold two separate trials. Mr. Edgington then began the trial of the present accused and, rather unnecessarily so far as we can see, exhibited the evidence already given at the joint trial, instead of treating it as given for the purpose of the trial of accused, whether alone or jointly. That, however, is not the point, with which we are concerned. What we are concerned with is that Mr. Edgington ceased to be the Judge, before the trial of the accused was concluded, being succeeded by Mr. Jackson. Mr. Jackson, apparently on his own initiative, decided to hold the trial de novo. He did not apparently notice that the course he adopted, the exhibition of the witnesses depositions in the previous trial without actually examining them de novo, deprived the accused and himself of any advantage which the de novo proceedings would have secured. We, however, have to decide whether there was an irregularity, which makes it our duty to order a new trial.

(2.) The general rule, as stated in 2 Hawkins Pleas of the Crown, chapter 46, is that "in cases of life no evidence is to be given against a prisoner, but in his presence." That rule is followed in this country and has been extended under our Code to all criminal trials. It is assumed in the directions regarding different kinds of trials in the Criminal Procedure Code that the witnesses are examined viva voce in the course of the trial; and this has been recognized frequently in judicial decisions, for instance, in The Queen V/s. Bishonath Pal (1869) 12 W. R. (Crl. R.) 3. and more recent cases to be referred to. No doubt departures from it are permitted, but only (so far as we have been shown) under some explicit provision of law, for instance, in cases in which it is difficult or impossible to secure the presence of a witness or under Section 145 to contradict the witness's evidence at the trial or under Section 157 to corroborate it; and there is also the class of cases covered by Section 288, Criminal Procedure Code. But none of these provisions has any application to what happened in the case before us, in which, to anticipate the reference to a statement of the accused's vakil to be found in the record, one witness's previous deposition was filed " in order to save cross-examination." We must therefore hold that there has been a deviation from the normal course of procedure, which would ordinarily vitiate the proceedings.

(3.) The question is, however, whether that deviation is cured by the consent of the accused. There is no doubt nothing in the record to show that the accused or the three vakils, by whom he was represented, consented explicitly to it. We find, however, in the record of the short examination of the third prosecution witness at the conclusion of Exhibit D, his previous statement, that a copy of that previous statement was filed " at the request of the vakil for the accused to save cross- examination again." There is further the omission to take any objection to the procedure at the trial or as a ground of appeal in this Court; and such omission, although we do not allow it to stand in the way of the accused raising the point, is significant with reference to his attitude and the attitude of his advisers in the lower Court. We therefore hold that there was an implied consent by the accused to the admission of the copies, of the previous depositions of the prosecution witnesses instead of their being examined in full at the trial.