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TMI Blog1980 (6) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the accused before charge and therefore, according to the ratio of Karmadhan Lama's case (supra), the accused had both the right and the opportunity to cross-examine within the meaning of the proviso to Section 33 of the Evidence Act and the prosecution would, therefore, if Section 33 applies, be entitled to rely on his deposition "for the purpose of proving the truth of the facts" stated therein if the prosecution could prove that, as alleged by it, the whereabouts of the witness concerned could no longer be ascertained or traced in spite of reasonable endeavours. And that is precisely what the prosecution in this case tried to do by requesting the Court through a written application to examine three more witnesses, before the accused was called upon to make his statements under Section 342, Code of Criminal Procedure and that is what the learned Sessions Judge has refused to do by his impugned order. If the learned Judge had good reasons to do so. the revision shall fail: but if the reasons are not good enough, the revision should succeed. It may be noted that under the provisions of the Sikkim Criminal Procedure Act, 1976, the Code of Criminal Procedure, 1898, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring expressly, to the principle enshrined in the maxims -- "Expressio unius est exclusio alterius" and "Expressum facit cessare taciturn" -- that is, express mention of one excludes the other and makes the other cease to exist. It is no doubt true that the right to cross-examine has been expressly conferred on the accused under Section 256 and Section 257 of the Code of Criminal Procedure only after a charge has been framed. Section 208(2) may also be referred to as another instance of an express grant of a right in favour of the accused to cross-examine the prosecution witnesses when they are examined in commitment proceedings before a charge is framed and Section 290 is yet another instance where cross-examination of defence witnesses has been expressly referred to. And from these, it has been held in some of those decisions that a right to cross-examine in any other case, that is, in any case where such a right has not been expressly conferred, must be deemed to be excluded though, they maintain, the Courts may and should allow the accused or the opposite party opportunity to cross-examine the witnesses examined by the adversary in such cases also. Now, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure", as held by Prinsep and Ameer Ali, JJ., in Queen-Empress v. Sagal Samba Sajao ILR (1894) Cal 642 and I thought further, as held by Cuming and Lord-Williams, JJ. in Emperor v. C. A. Mathews, that even though Section 138, Evidence Act confers a right to cross-examine after a witness is examined-in-chief, that Section, by itself, does not conclude the point that such cross-examination or the opportunity to do so must immediately follow the examination-in-chief and cannot be deferred to after framing of the charge. It may be that the provisions of the Indian Evidence Act, 1872, or, for the matter of that, any other statutory law of evidence, not being formally applicable in Sikkim, my anxiety to find and found such a right apart from and independently of any such statutory provision led me to trace the right from the provisions of Section 252 itself which enjoins the Magistrate to "take evidence." When under Section 353 of the Code, barring few exceptions not relevant for our present purpose, evidence must be recorded in the presence of the accused or of his pleader, when his personal attendance is dispensed with and his right to defend himself throughout the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench decision of the Calcutta High Court of Prinsep and Ameer, Ali, JJ., in Queen-Empress v. Sagal Samba Saiao ILR (1894) Cal 642 (supra) where the reasons for this apparent incongruity or redundancy were explained with reference to the earlier Codes of 1861, 1872 and 1882. I also find Gurnam Singh, J., to have explained the aforesaid apparent anomaly in the same way in the Full Bench decision of the former Pepsu High Court in State v. Baldev Kishan AIR 1952 Pep 178 : 1953 Cri LJ 51, after referring to and relying on the aforesaid Calcutta decision, I will have to refer hereinafter to this Pepsu decision in more details which, if I may say so with respect, is one of the most thoughtful and thought-provoking-judgments on the point falling for our consideration in this case and for the present I will quote the following from the judgment of Gurnam Singh, J., (at P. 181): Section 194 of the Code of 1861 and Section 191 of the Code of 1872 expressly gave the right to the accused to cross-examine the prosecution witnesses before commitment. This provision was omitted from the Code of 1882 by the Legislature obviously on the ground that the right to cross-examination was inherent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of a prosecution witness already on record before charge, whom the accused had the right and opportunity to cross-examine, at all requires the aid of the provisions of Section 33, Evidence Act, in order to maintain its judicial existence on the record, if such a witness is not or cannot be produced for cross-examination after charge, may not be beyond doubt. According to Section 33, evidence given by a witness in a judicial proceeding is relevant for the purpose of providing, 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 no longer available due to death or other reasons specified therein provided the conditions laid down in the three clauses of the proviso thereto, reproduced here in below, are satisfied, namely,: that the proceeding was between the same parties or their representative-in-interest; that the adverse party in 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. (Underlining for emphasis). 11. Now, I do not think that the trial in a warrant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to such evidence in view of the fact that the accused has been deprived of his legal rights to cross-examine him further under Section 256 and Section 257. In this case, it is not necessary to express any final opinion on this question because, as I will presently show, the case can be satisfactorily disposed of without any final determination of this question. But in view of the importance of the question and the difference of opinion among the different High Courts, I would only like to state that, if it was necessary, I would have, with respect, expressed my preference for the later view and I would like to state briefly the reasons therefor. 13. Under Section 5, Evidence Act, evidence "may be given" of every fact in issue and of other facts declared to be relevant under the said Act. The question of relevancy of evidence generally and ordinarily arises at the time when such evidence is "gjven" and is admitted under Section 136, Evidence Act. It is no doubt true that even if evidence is given and admitted under a bona fide impression as to its relevancy, it has got to be excluded from consideration if at any latter stage such impression is shown or found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in admissible and relevant as before without the aid of the provisions of Section 33, though as already pointed out, such absence of cross-examination may very much affect its reliability. 14. This appears to be the view of the Madras High Court in Maharaja of Kolhapur v. S. Sundaram, of the Lahore High Court in Mangal Sen v. Emperor AIR 1929 Lah 840 (2) at p. 842, of the Patna High Court in Mst. Horil Kuer v. Rajab Ali and in Srikishun Jhunjhunwalla v. Emperor and of the Allahabad High Court in Ahmad Ali v. Joti Prasad And all these decisions have been referred to with approval and, if I may say so with respect, explained and expounded with exceptional clarity by Gurnam Singh, J., in the Full Bench case of the Pepsu High Court in State v. Baldev Kishan, where the learned Judge has further pointed out (at p. 184) that the words "in a later stage of the same judicial proceeding" in Section 33, Evidence Act "can hardly apply to the proceedings subsequent to the framing of a charge in a warrant case" and that the cases contemplated by the said words are: When the appellate Court on appeal against conviction by the accused orders retrial and if during such trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 33. And if Section 33 does not apply and the evidence of the witness concerned before charge would remain on record as legal evidence without the aid of Section 33, the prayer of the prosecution to examine further witnesses to Drove that the witness concerned can no longer be found to be made available for further cross-examination, should still be allowed so that the Court can be satisfied that the non-availability of this witness for further cross-examination as provided under the law is or is not the result of any deliberate maneuver on the part of the prosecution which would go a long way to assist the Court in deciding as to whether or not any adverse inference is to be drawn against the prosecution or as to whether any weight and if so what weight, is to be attached to the evidence of this witness concerned. 17. It appears from the impugned order dated 25-3-1980 that what weighed with the learned Judge and led him to reject the prayer of the prosecution was the fact that the prosecution was allowed and "had ample opportunity" to produce the witness concerned and the "prosecution evidence was closed" on 11th March 1980, when the next date was fixed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on inviting him to do something which he was under the statutory obligation to do under Section 540, Code of Criminal Procedure, which mandates every Court to "summon and examine or re-call and re-examine any such witness, if his evidence appears to it essential to the just decision of the case". 18. The provisions of Section 540 of the Code of Criminal Procedure, should have been clear enough without any judicial gloss thereon. But the decisions of the different High Courts, speaking in different voices, created some impressions which were difficult to reconcile. However, the Supreme Court decision in Jamatraj Kewalji Govani v. State of Maharashtra 1968CriLJ231 , now the leading decision on this section, referred to with approval in the later decision in Amar Chand v. Shanti Bose 1973CriLJ577 , has not only settled the law on the point but has cleared our minds of some of those impressions which must now. in view of the Supreme Court decision, be regarded to be wrong. It was thought that this power under Section 540. Criminal Procedure Code was not to be exercised to the disadvantage of the accused and "that the practice should be limited to a case where the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence as it would think to be essential for a just decision. The learned Judge in this case has completely failed to advert to this aspect and was wrong in rejecting the application on behalf of the prosecution and thereby failed to exercise a jurisdiction vested in him by law. The impugned order, therefore, must be set aside and the case must be sent back to the learned Judge for disposal according to law with this direction that the learned Judge shall summon and examine the three witnesses mentioned in the application filed by the prosecution but that their evidence shall be confined only to the question as to whether the witness concerned was no longer traceable and could not be found to be recalled for cross-examination after charge. 20. One word more before I conclude. As already noted, the learned Judge rejected the prayer of the prosecution to examine three more witnesses to prove the untraceability of the witness concerned, solely on the ground that "ample opportunity" was given to the prosecution to produce the witness concerned for cross-examination after charge. No doubt, the learned Judge, as will appear from the Order-sheet, afforded good deal of opport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdship finally held that "if it was intended by the Legislature that not the Magistrate who has ascertained from the accused what witnesses the accused wants to cross-examine but the complainant will have to produce those witnesses, it would have said so clearly in so many words". The same view was also expressed by the Allahabad High Court in the Division Bench decision in Saghir Uddain v. Mt. Munni MANU/UP/0055/1948MANU/UP/0055/1948. referred to with approval by Das Gupta, J. in Bepin Behari's case (supra). It was observed by Desai, J., Wanchoo, J. (as his Lordship then was) concurring that under Section 256 it is for the Magistrate to ascertain from the accused if he wished to cross-examine any of the prosecution witnesses, and "when this duty is considered together with the requirement that on the accused's answering in the affirmative, 'the witness named by him shall be recalled', it follows that it is for the Magistrate to recall them and not for the complainant". It was pointed out further that after cross-examination and re-examination, the witnesses are to be discharged and such duty of discharging can be performed only by the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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