In a warrant case, an accused has no right to cross-examine prosecution witnesses before charge.

( 1 ) THIS Rule is directed against an order of acquittal.

( 2 ) THE petitioner's father Kali Charan Mukherjee, since deceased was the complainant in a case of cheating against the opposite party. Kali Charan was a retired Magistrate. On or about 9-8-1947, the opposite party represented to the complainant that he was in a large way of business and that pending the payment to him of a bill which was due to him from Messrs. Birla Bros. , Ltd. he required a temporary loan of Rs. 5,000/ -. The opposite party asked the complainant for the loan and promised to repay it by 7-11-1947, at the latest. The complainant's case was that by reason of the said representations, which he believed, he was induced to deliver to the opposite party a cheque for Rs. 5000/- which the opposite party in due course cashed. According to the complainant, in order to create confidence in his mind, the opposite party deposited with the complainant as security two policies of life insurance for Rs. 10,000/-and Rs. 1,000/- respectively. As the opposite party failed to repay the loan, the complainant became suspicious and caused enquiries to be made and learnt that the policies concerned had lapsed before they were deposited with him and that the opposite party had never had any dealings with Birla Bros, and nothing was therefore due to him from them. On these allegations the complainant instituted a case against the opposite party under Section 420, I. P. C.

( 3 ) AFTER examining some six witnesses including the complainant a charge under Section 420, I. P. C. was framed against the opposite party. The complainant died before being cross-examined after charge. The case, however, proceeded. The learned Magistrate held that the complainant's evidence before charge was inadmissible under Section 33, Evidence Act and that the residue of the evidence was insufficient to prove the case. Accordingly, he acquitted the accused. It is to be observed that the learned Magistrate believed the defence evidence and came to the conclusion that in the absence of the evidence of the complainant the prosecution had failed to prove that the representations alleged to have been made by the opposite party were false.

( 4 ) THE point of law for decision is whether the complainant's evidence before charge was admissible under Section 33, Evidence Act. Section 33, Evidence Act is as follows :"33. Evidence given by a witness in a judicial proceeding, or before 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 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 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 within the meaning of this section. "one of the requirements of the section being that the adverse party in the first proceeding had the right and opportunity to cross-examine, we have to decide whether or not the opposite party had the right to cross-examine the complainant before the charge was framed. This brings us to the question whether in trials of warrant cases an accused has a right to cross-examine witnesses before charge is framed. That a party has a right to cross-examine his adversary's witness is obvious. The law gives him such a right. The question is at what point of time in the course of a trial has he such a right.