The admissibility of a deposition in evidence is determined by the provisions of Order XVIII, Rule 5, Civil Procedure Code, and Section 91 of the Evidence Act, along with relevant case law.

Phillips, J.

1. This is an application to set aside a sanction to prosecute petitioner appellant for an offence under Section 193, Indian Penal Code; but the only point argued is the admissibility in evidence of petitioners (appellants) deposition. This deposition was properly recorded by the District Munsif, but was read over to the witness by a clerk in a room next to the Court room at a distance of 30 feet from the Munsifs seat. There were two clerks sitting between the place where the deposition was read and that where the Munsif sits. Under Order XVIII, Rule 5, Civil Procedure Code, a deposition shall be read over in the presence of the Judge and the witness, and the first question that arises is whether the deposition before us can be deemed to have been read over in the presence of the Judge. From the evidence on record it does not appear whether the Munsif could actually see the witness and the clerk while the deposition was being read over; but I am satisfied that the provisions of the rule would be adequately complied with if the deposition were read over in a place within the sight of the presiding Judge and from which the witness could draw the attention of the Judge to any mistakes or omissions discovered by him. The reading over of the deposition is primarily intended for the purpose of securing a correct record, and in order to secure this, the witness is given an opportunity of drawing attention to mistakes. The presence of the Judge is required in order to ensure that such an opportunity is really afforded to the witness. Under the old Civil Procedure Code of 1882, the deposition had to be read over in the presence of the parties or their Pleaders as well as of the Judge and the witness. According to Boddam, J., in Kamatchinathan Chetty v. Emperor 28 M. 308 : 2 Cr. L.J. 756 "the Vakils are required to be present, that they may call the attention of the witness to any statement appearing in the deposition which may or may not require correction." The omission of this Safeguard in the new Code leads one to suppose that the Legislature was satisfied that the presence of the Judge was a sufficient safeguard to ensure the correct record of the deposition, for the witness is the best and really the only person who can say that what he had said has been correctly recorded. When, therefore, the deposition has been read over in such a place that the witness can invoke the aid of the Judge to enable him to make any corrections that may be necessary, I think that the requirements of Order XVIII, Rule 5, Civil Procedure Code, are satisfied. It is clear to my mind that the Judge is not required to do more than exercise a general supervision over the reading over of the deposition, for in many cases the deposition is interpreted to the witness in a, language which the Judge does not understand. I am supported in this view, by a judgment of this Court reported as Muthukumara Reddy, In re 9 Ind. Cas. 262 : 9 M.L.T. 325 : 21 M.L.J. 411 : 12 Cr. L.J. 44 to which my learned brother was a party.

2. Assuming, however, that it has not been proved that the deposition was read over in the manner and circumstances referred to above, we have to consider whether the deposition is or is not admissible in evidence. Such a deposition was held to be inadmissible in Kamatchinathan Chetty v. Emperor 28 M. 308 : 2 Cr. L.J. 756 and also in Mohendra Nath Misser v. Emperor 12 C.W.N. 845 : 8 Cr.L.J. 116 but a different view was taken in Bogra In re: 7 Ind. Cas. 414 : 34 M. 141 : 8 M.L.T. 117 : (1910) M.W.N. 435 : 20 M.L.J. 943 : 11 Cr.L.J. 482

3. The view taken in Kamatchinathan Chetty v. Empror 28 M. 308 : 2 Cr. L.J. 756 by Boddam, J., was that the document, though purporting to be a deposition, had been read over and signed without the requirements of the law being complied with and was, therefore, not a deposition and should not have been admitted as such. In Mohendra Nath Misser v. Emperor 12 C.W.N. 845 : 8 Cr.L.J. 116 it was held that th