The procedure adopted by the trial court of bringing on the record of a criminal case the statements of the witnesses who were actually examined in another case without giving an opportunity to the accused to cross-examine them is an illegality that vitiates the trial.

V.P. Tyagi, J.-These are two appeals filed by Sukan Raj against the judgments both dated 18th December, 1964 in two separate sessions trials Nos. 8 of 1963 and 9 of 1963, convicting the accused appellant for offences under Sections 409, 467 and 468 I. P. C. in case No. 9 of 1963 and under Sections 471 and 477-A. I. P.

C. in case No. 8 of 1963 and sentencing him to two years’ rigorous imprisonment under each count in both the cases but it has been ordered that the sentences of imprisonment awarded in both the cases under all counts shall run concurrently.

2. It is needless to state the prosecution case as both the appeals can be disposed, of on the question of illegality committed by the trial judge in recording the evidence of the witnesses. It is urged by the learned Counsel for the appellant that five prosecution witnesses were examined in case No. 9 but their copies were taken as evidence in case No. 8, and similarly 26 witnesses were examined in case No. 8 but their copies were taken in case No. 9 and the Court while convicting the accused appellant passed its judgments in both the cases on such an inadmissible evidence which was never recorded by the Court in accordance with the provisions of Criminal Procedure Code relating to the recording of evidence. Learned Deputy Government Advocate has frankly admitted that the trial Court has somehow committed this error of carrying the copies of the statements of some witnesses from one case to another, but his contention is that this is merely an irregularity which is curable under Section 537 CrPC, and since no objection was raised by the accused at the trial for adopting this procedure, it should be taken that it was done by the Court with the consent of the accused and his Counsel, and that this procedure did not in any manner prejudice the case of the accused.

3. It is not disputed that witnesses Ballabh Chand P. W. 13, Hamid Khan P. W. 14, Gangasingh, P.W. 15, Bastiram, P.W. 21 and Mangla P. W. 22 were originally examined in case No. 8 of 1963 but the copies of their statements were taken on the record of case No. 9 of 1963 where these witnesses have been marked as P. W. 5, P. W. 6, P.W. 7, P. W. 13 and P. W. 14 respectively. Similarly, the following witnesses namely P. W.8 Jogidas, P.W. 9 Roopsingh, P.W. 10 Harichander, P. W. 15 Hariram, P. W. 16 Bhopalsingh, P. W. 17 Mohanlal,

P. W. 18 Mangilal, P. W. 19 Manaram, P. W. 20 Mohanlal, P. W. 21 Thanaram, P. W. 22 Hansraj, P. W. 23 Hansraj (2), P. W. 24, Pannevsingh, P. W. 25 Vijaisingh, P. W. 26 Rameshwarlal, P. W. 27 Kewalram, P. W. 28 Achalaram, P. W. 29 Brifilal, P. W. 30 Khinvraj, P. W. 31 Chaturdan, P. W. 32 Jodhsingh, P. W. 33 Bhikulal, P.

W. 34Narainsing, P. W. 35 Daulal and P. W. 36 Abdul Razak were originally examined in sessions case No. 9 of 1963 but the copies of their statements were brought on record in case No. 8 of 1963 where these witnesses have been marked as P. W. 16, P, W, 17, P. W. 18, P. W. 23, P. W. 24, P. W. 25, P. W. 26, P. W. 28, P. W. 29, P.

W. 31, P. W. 32, P. W. 33, P. W. 34, P. W. 35, P. W. 27, P. W. 38, P. W. 39, P. W. 41, P. W. 42, P. W. 43, P. W. 44,

P. W. 45, P. W. 46, P. W. 47 and P.W. 48 respectively.

4. The question that arises for my determination in these circumstances is whether the procedure adopted by the trial Court of bringing on the record of a criminal case the statements of the witnesses who were actually examined in another case without giving an opportunity to the accused to cross-examine them is an irregularity curable under Section 537, CrPC or it is illegality that vitiates the trial.

5. Section 353 CrPC provides that “except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleader.” It is urged by learned Deputy Government Advocate that the copies were made out in the presence of the accused but in my