1980 (6) TMI 122 - HC - Indian Laws

Summary

Issues Involved:
1. Right of the accused to cross-examine prosecution witnesses before charge.
2. Applicability of Section 33, Indian Evidence Act, 1872.
3. Obligation of the court under Section 540, Code of Criminal Procedure.
4. Duty of the court to recall witnesses for cross-examination under Section 256, Code of Criminal Procedure.

Detailed Analysis:

1. Right of the Accused to Cross-Examine Prosecution Witnesses Before Charge:
The court reaffirmed the principle established in Karmadhan Lama's case that an accused has an absolute right to cross-examine a prosecution witness before any charge is framed in a warrant case not instituted on a police report. The court emphasized that this right is integral to the examination of a witness and is grounded in the elementary principles of judicial procedure and natural justice. The court rejected the contrary view that such a right is only conferred by Sections 256 and 257 of the Code of Criminal Procedure after a charge is framed, asserting that the right exists inherently under Section 138 of the Evidence Act.

2. Applicability of Section 33, Indian Evidence Act, 1872:
The court examined whether the evidence of a witness given before charge, whom the accused had the opportunity to cross-examine, requires the aid of Section 33 to maintain its judicial existence if the witness cannot be produced for cross-examination after charge. The court concluded that the trial in a warrant case cannot be divided into separate proceedings for the purpose of applying Section 33. The evidence given before charge remains on record as legal evidence without needing to satisfy the conditions of Section 33, though its weight may be affected if the witness is not available for further cross-examination.

3. Obligation of the Court Under Section 540, Code of Criminal Procedure:
The court held that the learned Sessions Judge erred in refusing the prosecution's request to summon and examine additional witnesses to prove the untraceability of the witness concerned. Section 540 mandates the court to summon and examine any witness whose evidence is essential to the just decision of the case. The court emphasized that this obligation exists regardless of whether Section 33 of the Evidence Act applies, as the evidence of the witness concerned is crucial for the prosecution's case.

4. Duty of the Court to Recall Witnesses for Cross-Examination Under Section 256, Code of Criminal Procedure:
The court clarified that after a charge is framed, it is the court's duty to recall witnesses for cross-examination if the accused wishes to do so. This duty is not merely to provide the prosecution with an opportunity to produce the witnesses but to take active steps to secure their presence. The court criticized the learned Sessions Judge for not fulfilling this duty and for placing undue responsibility on the prosecution to produce the witnesses.

Conclusion:
The revision was allowed, and the impugned order was set aside. The learned Sessions Judge was directed to summon and examine the three witnesses mentioned by the prosecution to determine whether the original witness could not be traced and made available for cross-examination after charge. The court underscored the importance of the judge's role in ensuring a fair trial by actively securing the presence of witnesses as required by law.