It would be in the fitness of things to mention at the outset that in a significant development, the Supreme Court as recently as on October 29, 2021 in a cogent, commendable, composed and convincing judgment titled AT Mydeen vs Assistant Commissioner, Customs Department LL 2021 SC 610 in Criminal Appeal No. 1306 of 2021 @ Special Leave Petition (Crl.) No. 374 of 2020 has held explicitly, elegantly and eloquently that the 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. 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. Very rightly so!
To start with, this learned, latest, laudable and landmark judgment authored by Justice Vikram Nath for a Bench of Apex Court comprising of himself, Justice Dr DY Chandrachud and Justice BV Nagarathna sets the ball rolling by first and foremost observing in para 2 that:
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 v/s. 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."
In hindsight, the Bench then recalls in para 3 that:
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."
Truth be told, the Bench then points out in para 4 that:
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."
In addition, the Bench then states in para 5 that:
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/-."
As we see, the Bench then reveals in para 6 that:
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."
Furthermore, the Bench then puts forth in para 7 that:
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."
Be it noted, the Bench then envisages in para 8 that:
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:
- 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.
- 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.
- 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.
- 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.
- 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.
As a corollary, the Bench then enunciates in para 9 that:
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."
Needless to say, the Bench then discloses in para 10 that:
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."
Quite rightly, the Bench then holds in para 18 that:
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."
Simply put, the Bench then remarkably observes in para 19 that:
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."
It is worth noting that the Bench observes in para 25 that:
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."
Briefly stated, the Bench then brings out in para 36 that:
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."
Quite rightly, the Bench then remarked in para 37 that:
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 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."
Quite forthrightly, the Bench then also hastened to add in para 38 that:
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 High Court in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view."
To be sure, the Bench then also mentions in para 39 that:
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."
In short, the Bench then puts forth in para 40 that:
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."
Of course, the Bench then clearly states in para 41 that:
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."
Quite significantly, the Bench then stipulates in para 42 that:
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."
What's more, the Bench then states in para 43 that:
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."
As it turned out, the Bench then observed in para 44 that:
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 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."
Quite ostensibly, the Bench then holds in para 45 that:
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."
Finally, the Bench then holds in para 46 that:
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."
In conclusion, the Bench of Apex Court in this notable judgment has made it abundantly clear that the 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. All the courts must definitely adhere entirely to what has been laid down by the Apex Court so explicitly in this noteworthy case. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
