A.T. MYDEEN AND ANOTHERversusTHE ASSISTANT COMMISSIONER, CUSTOMS DEPARTMENT

                        [2021] 10 S.C.R. 91                              91


                 A.T. MYDEEN AND ANOTHER                                 A
                                  v.
THE ASSISTANT COMMISSIONER, CUSTOMS DEPARTMENT
                 (Criminal Appeal No. 1306 of 2021)
                        OCTOBER 29,2021                                  B
 [DR. DHANANJAYA Y CHANDRACHUD, VIKRAM NATH
           AND B. V. NAGARATHNA, JJ.]
       Code of Criminal Procedure, 1973: Allegation of clandestine
export – Two separate trials – Acquittal by two separate judgments
                                                                         C
– Appellate court considering evidence of only one case and
convicting the accused – Propriety of – Held: 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       D
the instant case, 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 – 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
                                                                         E
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 – 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-    F
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
                                                                         G
been conducted may be 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       H
                                 91
92            SUPREME COURT REPORTS                      [2021] 10 S.C.R.


A    both the appeals separately and the evidence recorded in the
     respective trials giving rise to the appeals – High Court ought to
     have distinctly considered and dealt with the evidence of both the
     trials and then decide the culpability of the accused persons – Matter
     remitted to High Court for consideration afresh – Customs Act, 1962
     – Administration of criminal justice – Fair trial.
B
           Code of Criminal Procedure, 1973: ss.367, 391 – 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 – The scope of the appellate court’s
     power does not go beyond the evidence available before it in the
C    form of a trial court record of a particular case, unless s.367 or
     s.391 comes into play in a given case, which are meant for further
     inquiry or additional evidence while dealing with any criminal
     appeal.
           Allowing the appeals and remitting the matter to High
D    Court, the Court
           HELD: 1.1 Fair trial is the foundation of the criminal justice
     delivery system. The statutory arrangement of criminal justice
     delivery system encompasses few provisions in that regard under
     the Cr.P.C. and the Evidence Act, 1872.Section 273 of Cr.P.C.
E    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. The exception of
     this provision finds place in section 205 of Cr.P.C. wherein
F    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.
G    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. [Paras 19, 20, 21][100-A-C, E-G]

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 A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                    93
                      DEPARTMENT

      1.2 In the Evidence Act, 1872, section 33 provides relevancy     A
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. [Para 23][103-F]
                                                                       B
      Karan Singh v. State of Madhya Pradesh AIR 1965 SC
      1037 : [1965] 2 SCR 1; Nirmal Singh v. State of
      Haryana (2000) 4 SCC 41:[2000] 2 SCR 807;
      Jayendra Vishnu Thakur v. State of Maharashtra (2009)
      7 SCC 104:[2009] 8 SCR 591; Raja @ Ayyappan v.
      State of Tamil Nadu (2020) 5 SCC 118 – relied on.                C

      Doat Ali and Ors. v. Mahammad Sayadali and Anr. AIR
      1928 Cal 230; Pedda Venkatapathi and Ors. v. State
      AIR 1956 AP 96 – referred to.
      2. The High Court committed an error of law in dealing           D
with the evidence of one trial for deciding both the appeals arising
out of two separate trials. 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           E
same exhibit numbers in the second case as in the first case.
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     F
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.       G
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
                                                                       H
94            SUPREME COURT REPORTS                       [2021] 10 S.C.R.


A    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.
     [Paras 35, 36, 37][111-F-H; 112-G-H; 113-A-C]
           3.1 In the matter of a criminal trial against any accused, the
B    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
C    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. [Para 39][113-E-G]
           3.2 It is also an undisputed proposition of law that in a
D    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
E    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.
     [Para 41][114-A-B]
           3.3 In the present controversy, two different criminal
F    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
G    ought to have distinctly considered and dealt with the evidence
     of both the trials and then to decide the culpability of the accused
     persons. [Para 42][114-C-D]



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 A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                      95
                      DEPARTMENT

       4. Once a common judgment is set aside for one appeal, it         A
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
                                                                         B
High Court for a fresh decision in accordance with law.
[Para 44][114-H; 115-A-B]
                       Case Law Reference
[1965] 2 SCR 1                 relied on              Para 26
                                                                         C
[2000] 2 SCR 807               relied on              Para 27
[2009] 8 SCR 591               relied on              Para 28
(2020) 5 SCC 118               relied on              Para 30
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1306 of 2021.                                                         D
     From the Judgment and Order dated 19.10.2019 of the High Court
of Madras at Madurai Bench in Crl. A. (MD) No.58 of 2009.
      With
      Criminal Appeal Nos.1307-1308 And 1309-1310 of 2021.               E
      R. Basant, S. Nagamuthu, Sr. Advs., K. K. Mani, Ms. T. Archana,
M. P. Parthiban, A. S. Vairawan, R. Sudhakaran, Mrs. Shalini Mishra,
T. Hari Hara Sudhan, Vikash G. R., Advs. for the Appellants.
      Vikramjit Banerjee, ASG, Mukesh Kumar Maroria, Mohd. Akhil,
Prashant Bhagwati, Nachiketa Joshi, Sughosh Subramaniyam, B. Krishna     F
Prasad, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      VIKRAM NATH, J.
      1. Leave granted.                                                  G
      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     H
96             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A    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
B    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.
C            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
D    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
E    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/
F    -. The total value thus being Rs. 96,62,800/-.
           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
G    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
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 A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                           97
            DEPARTMENT [VIKRAM NATH, J.]

Commissioner against him which was registered as Calendar Case No.            A
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         B
acquittal of all the accused on the following findings:
      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.                                          C
      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         D
             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.                  E
      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            F
             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
                                                                              G
             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.
      9. Aggrieved by the acquittal, the Customs Department preferred
two appeals before the High Court. The learned Single Judge, Madurai
                                                                              H
98                 SUPREME COURT REPORTS                    [2021] 10 S.C.R.


A    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.
B
           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.
C
           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.
D           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.
E            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
F    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
G    law on the point. He has drawn our attention to various provisions of the
     Cr.P.C.
           14. Mr. Nagamuthu, learned senior counsel, in support of the above
     proposition, has placed reliance on the following judgments:

H    1
         Cr.P.C. for short
    A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                         99
               DEPARTMENT [VIKRAM NATH, J.]

       (i) State of Kerala and Ors. vs. Joseph Alias Baby and                  A
              2
       Ors. ; and
       (ii) Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai
       Patel and Ors.3
       15. On the other hand, Mr. Vikramjit Banerjee, learned Additional       B
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          C
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. Banerjee relied upon the following judgments in
support of his submission:
                                                                               D
       (i)        Doat Ali and Ors. vs. Mahammad Sayadali and Anr.4 and
       (ii)       Pedda Venkatapathi and Ors. vs. State5
       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         E
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.
                                                                               F
       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 against another accused, though        G
for the commission of the same offence.

2
  (2014) 16 SCC 385
3
  (2018) 7 SCC 743
4
  AIR 1928 Cal 230
5
  AIR 1956 AP 96                                                               H
100             SUPREME COURT REPORTS                            [2021] 10 S.C.R.


A            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.
B
            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
C     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
D            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.
E            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
F     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: -
G
             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.
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  A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                          101
             DEPARTMENT [VIKRAM NATH, J.]

      (2) But the Magistrate inquiring into or trying the case may, in his    A
      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
                                                                              B
      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 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         C
      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          D
      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        E
      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          F
      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        G
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 reference, sections 275, 276, 278 and 279 are reproduced
hereunder: -
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102      SUPREME COURT REPORTS                         [2021] 10 S.C.R.


A     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
B     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.]
C     (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
D     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.
E     (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 an officer of
      the Court appointed by him in this behalf.
F     (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
G     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
H     section 276 is completed, it shall be read over to him in the
  A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                          103
             DEPARTMENT [VIKRAM NATH, J.]

      presence of the accused, if in attendance, or of his pleader, if he     A
      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           B
      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.           C
      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.
                                                                              D
      (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.
      (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.                                                   E
        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      F
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
                                                                              G
      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              H
104               SUPREME COURT REPORTS                        [2021] 10 S.C.R.


A              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
B              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
C              within the meaning of this section.
            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
D     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
E     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 Pradesh6 was confronted with the question, as to,
F     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 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: -
G
               “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

      6
H         AIR 1965 SC 1037
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                     105
           DEPARTMENT [VIKRAM NATH, J.]

   under S. 302 read with S. 34 by finding on the evidence that        A
   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
                                                                       B
   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      C
   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.       D
   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          E
   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 .
   ……………….                                                             F
   …………………………………
   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       G
   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      H
106                SUPREME COURT REPORTS                     [2021] 10 S.C.R.


A              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.
B              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
C     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
D              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 enumerated in the second
E              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: -
F
               “18. The right of an accused to watch the prosecution
               witnesses deposing before a court of law indisputably is a
               valuable right.
               ……………………………….
G              ………………………………………….
               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
      7
          (2000) 4 SCC 41
      8
H         (2009) 7 SCC 104
A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                    107
           DEPARTMENT [VIKRAM NATH, J.]

   would be defeated by conduct of the accused that prevents it       A
   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
                                                                      B
   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      C
   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            D
   valuable right to represent himself, he has also the right to be
   informed thereabout. If an exception is to be carved 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. (See - Sarabjit Rick Singh v. Union    E
   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    F
   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       G
   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.”                              H
108                SUPREME COURT REPORTS                        [2021] 10 S.C.R.


A           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
B
      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. -

C              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,
D
      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
E     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
F              the confession recorded shall be admissible in trial of a
               co-accused 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 co-accused cannot be held to be admissible
               in evidence against another accused who would face trial at
G              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.
H     9
          (2020) 5 SCC 118
 A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                        109
            DEPARTMENT [VIKRAM NATH, J.]

      32. In Ananta Dixit v. The State reported in 1984 Crl. L.J.          A
      1126, the Orissa High Court was considering a similar case
      under Section 30 of he Evidence Act. The 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.
                                                                           B
      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         C
      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         D
      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            E
      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 thatsince the trial of the other two
      accused persons was separate, their confession statements            F
      (Ex.P-26 and P-27) 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           G
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 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      H
110            SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A     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
B           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.”
C            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
D     1998, no evidence was recorded independently. The Trial Court had
      proceeded to record acquittal relying upon the evidence 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
E     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
F           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
G           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
H           Track Court.”
  A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                          111
             DEPARTMENT [VIKRAM NATH, J.]

       33. Mr. Vikramjit Banerjee, learned Additional Solicitor General,      A
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 opportunity, for that, such evidence was impermissible. The first
                                                                              B
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.            C
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.
                                                                              D
       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,       E
set 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   F
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            G
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     H
112            SUPREME COURT REPORTS                           [2021] 10 S.C.R.


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

                            LIST OF DOCUMENTS
          CC No.2/2003               Documents Marked              CC 4/2004
D      (Dhanapal and others)                                      (Alexander)
             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
E            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
F           Ext. P12                  Adjudication Order            Ext. P13
            Ext. P13                     Shipping Bill              Ext. P10
                                 Judicial Exhibits
                Marked           Judicial Report         Not marked

G             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 both the cases, although examined in different
H
  A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                         113
             DEPARTMENT [VIKRAM NATH, J.]

sequence, was the same, there could have been an element of some             A
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
                                                                             B
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
                                                                             C
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       D
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   E
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
                                                                             F
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
                                                                             G
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.

                                                                             H
114             SUPREME COURT REPORTS                          [2021] 10 S.C.R.


A             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
B
      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
C     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
D     persons.
             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
E     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
F     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.
G            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 law and therefore, the judgment
      of the High Court needs to be set aside. Once a common judgment is set
H     aside for one appeal, it cannot be upheld for another appeal. There cannot
  A.T. MYDEEN v. THE ASSISTANT COMMISSIONER, CUSTOMS                            115
             DEPARTMENT [VIKRAM NATH, J.]

be a severance of the judgment particularly when it arises in a criminal        A
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.
                                                                                B
      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          C
the High Court afresh in the light of the observations made above.


Devika Gujral                                                Appeals allowed.


                                                                                D




                                                                                E




                                                                                F




                                                                                G




                                                                                H