1. A case under sections 366, 376 R.P.C. was registered against the petitioner, and two others at the police station Kothibagh, Srinagar, on the allegation that one Miss Nicoulid Hubbarts had been kidnapped and raped at Gulmarg. After recording the evidence at the committal stage, all the accused persons were committed and sent up by the learned Chief Judicial Magistrate, Srinagar, to stand their trial before the learned Sessions Judge, Srinagar.

2. From the perusal of the record it appears that an application was made by the Public Prosecutor under section 33 of the Evidence Act for admitting the previous deposition of Miss Nicoulid Hubberts and Mr. Bruce Frantizi P.Ws in evidence at the trial. On these applications the learned Sessions Judge, Srinagar, vide his order dated 29th October, 1974 directed that the deposition of Mr. Bruce P.W. recorded by the committing magistrate would be read as evidence at the trial under Section 33 of the Evidence Act. With regard to Miss Nicouiid Hubberts, it was stated in the order that attempt should be made to secure her presence afresh. It is this order by which the previous deposition of Mr. Bruce was directed to be read as evidence in the trial under section 33 of the Evidence Act which has been impugned before me by means of this revision petition.

3. I have heard the learned counsel Mr. I. K. Kotwal appearing for the petitioner and Mr. Amar Chand, Addl. Advocate General for the State.

4. The main contention of Mr. Kotwal, the learned counsel for the petitioner is that an accused person has a valuable right to cross examine the witnesses and also confront them with their previous depositions at the trial, when they make a contrary statement at the trial, and this valuable right cannot be taken away except by the settled judicial principles. The learned counsel has also submitted that there was no material except a letter from the Embassy showing that the presence of Mr. Bruce could not be secured, and that by itself, submits the counsel, was not sufficient to direct the transfer of evidence under section 33 of the Evidence Act. The counsel also argued that the court had not come to any positive finding as to why it was necessary to read the previous statement of Mr. Bruce under Section 33 of the Evidence Act and as such the transfer of the statement was illegal. I think there is considerable force in the submissions, made by the learned counsel. In my opinion the learned Sessions Judge has not carefully gone into the merits of this case and has passed the order without following the procedure established by law. Section 33 of the Evidence Act provides, that when a 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, it may direct that the evidence given by such a person in Judicial proceedings by taken as relevant for the purpose of proving in a subsequent judicial proceedings or in a later stage of the same judicial proceeding, the truth of the fact which it asserts. "From ; the bare reading of section 33 of the Evidence Act it is evident that before the court can direct the evidence of a witness to be read in evidence it must arrive at a finding, after taking necessary evidence, that the witness could not be procured without delay or expense or for any other reason as contemplated by the section. In the absence of any such finding it would be difficult to hold that the court has really applied its mind to the facts of the case. Merely saying in the order that the witness is not available, without .proper material on the record, is to give a finding based on almost no evidence. It must be proved strictly that the witness was not available or was incapable of giving evidence in the later stage of the judicial proceedings before invoking section 33 of the Evidence Act,

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