1. This is a petition under Article 134 (1) (c) of the Constitution of India for grant of certificate of fitness for filing an appeal before the Supreme Court of India against the judgment and order dated 22-4-1977 of this court.

2. The facts of the case have been set out in the aforesaid order of this court. Briefly speaking during the progress of trial of the case before the court of Sessions the prosecution sought transfer of the statement of the proseeutrix recorded by the committing court on the Sessions file on the ground that the proseeutrix was not traceable despite the fact that efforts were made to locate her whereabouts. This request of the prosecution was vehemently opposed by the accused on the ground that the statement of the witness had not been duly recorded by the Committing Magistrate in accordance with Sec. 356 and Sec. 360 of the Code of Criminal Procedure as the statement was not signed by the Magistrate and also it was not accompanied by an authenticated vernacular translation of the evidence given by the witness in English. The Session Judge upheld the objection and refused to transfer the statement on the records. Thereafter the matter came up in revision before this court. This court ruled thiat the statement could not be transferred and was not admissible under section 33 of the Evidence Act as the Committing Magistrate had committed breach of the rule which required the Magistrate to sign the statement and also prepare an authenticated vernacular translation of the evidence given by the prosecutrix.

3. The learned Addl. Advocate General has submitted that the judgment raises a substantial question of law for which there is no authoritative pronouncement of this court or of the Supreme Court. He has further submitted that the mere fact that an imperative statutory rule of procedure was not followed by the Magistrate while recording the statement of the prosecutrix is not enough to render the statement so recorded inadmissible in evidence u/s 33 of the Evidence Act. Omission to comply with the legal requirement of procedure would not vitiate the trial or proceeding. Reliance is placed upon the observations made in A.I.R. 1927 Privy Council 24, AIR 1950 Lahore 123, AIR 1934 Cal 636 and AIR 1931 All.3.

4. It is difficult to accede to the contentions raised at the Bar. In the first place it cannot be said that the question raised is of substantial importance so as to persuade this Court to grant certificate of fitness for leave to file the appeal; secondly, the legal position is clear beyond all doubt. When the imperative legal requirements as envisaged by Sections 356 and 360 of the Code are not fulfilled it cannot be said that the statement so recorded can constitute evidence within the meaning of Sec. 33 and Sec. 3 of the Evidence Act. Sec. 33 clearly lays down that evidence given by a witness in a judicial proceeding.........is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states if the conditions relating to the non-availability of the witness mentioned in the section are fulfilled. The opening word of sec. 33 is evidence and not statement. Now evidence has been denned in Sec. 3 of the Evidence Act, to mean and include all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. It is clear that the statement which the court permits or requires to be made must be recorded according to the procedural law for the time being in force. If there is serious infirmity in the manner of recording of the statement or if the statement, has been recorded in breach of the imperative rule of procedure then surely it cannot constitute evidence so as to make it admissible under Section 33. The authorities relied upon by the learned Addl. Advocate General merely state the proposition that if the statement is not recorded according to the procedure provided that would not vitiated the tria