Deposition from proceedings without jurisdiction cannot be used as evidence under S.33 of the Evidence Act

1. The petitioner is the accused in C. C. No. 9/72 before the Special Judge, Trivandrum. He was chargesheeted for having committed offences under S.5(2) read with S 5)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) and under S.161 of the Indian Penal Code. He was convicted and sentenced by the 2nd respondent Special Judge Trivandrum h the first instance in C. C. 2/67.

2. Against that conviction and sentence the the petitioner filed an appeal before this court as Criminal Appeal 352/69. The contention taken in the criminal appeal was that as per S.6(1)(c) of the Act, no court shall take cognizance of an offence punishable under S 161 of IPC, or under sub-section (2) or sub-section (3-A) of S.5 of the Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office.

3. The petitioner is an employee under the Kerala State Electricity Board. The Kerala State Electricity Board had given sanction under S.6(1)(c) of the Act to prosecute the petitioner for the aforementioned offences. In the criminal appeal before this court the petitioner contended that the sanction given by the Electricity Board is not valid at all, and therefore the proceeding before the 2nd respondent, in which he was convicted was not a judicial proceedings and also without jurisdiction. It was also contended that the conviction and sentence was void. This court held in the criminal appeal that there had been no proper sanction to the prosecution as contemplated by the relevant statutory provision and that without such sanction the prosecution was unsustainable and void and on that basis the court set aside the conviction and sentence and acquitted the petitioner.

4. After acquittal of the petitioner the Board gave fresh sanction as contemplated in S.6 of the Act and the case has been charge sheeted afresh before the 2nd respondent for the same offences. The case was numbered as C C. 9/72.

5. During the trial a petition was filed by Legal Adviser to the Vigilance Division, Trivandrum praying that summons may be issued to the witness mentioned in the petition, viz., the Bench Clerk of that court to prove the deposition given by Pw2 in C.C. 2/67; since that witness is dead it was prayed that the deposition of the witness in the earlier proceedings be admitted in evidence under S.33 of the Evidence Act, by proving it through the Bench Clerk, who recorded that deposition.

6. The petitioner objected to the marking of the deposition. According to him that cannot be proved under S.33 of the Evidence Act, since the same had been taken in a proceedings which had been declared by this court as unsustainable and void on the ground that the case was taken cognizance of by the 2nd respondent without proper sanction. It was also contended by the petitioner that the deposition of the witness being recorded in a proceedings without jurisdiction is not evidence given in a judicial proceedings or before any person authorised by law to take it. Over-ruling the objections the 2nd respondent has passed an order which has been marked as Ext. P1 in this O. P. It is stated therein that a perusal of the judgment in criminal appeal will show that what the court had decided therein is only to the effect that there has been no proper sanction obtained for prosecuting the accused and therefore the prosecution was unsustainable in law. The learned Special Judge points out that the court had not held that there has been inherent absence of jurisdiction on the part of the court to conduct the trial of C. C. 2/67 and therefore it cannot be contended that the deposition taken therein is destitute of any legal effect. The learned Special Judge further proceeds to state that no doubt the evidence given in a judicial proceedings with inherent absence of jurisdiction cannot be admitted in evidence under S.33 of the Evidence Act. By the mere fact that the High Court had declared that th