The accused has the right to cross-examine the prosecution witnesses before a charge is framed, and the evidence of a deceased witness is admissible under Section 33 of the Evidence Act only if the prosecution proves that the witness is dead.

1. The accused-appellant has been convicted under S. 409 of the Indian Penal Code in five criminal cases being Criminal Cases Nos. 50, 53 54, 55 and 56 of 1971 and has been sentenced to suffer rigorous imprisonment for various terms, which are to run concurrently, and also to pay fines of various amounts on the charge that being a Mondal appointed to collect land-revenue and as such being entrusted with the amounts so collected, he committed criminal breach of trust in respect of such amounts. As the alleged breach of trust related to five different periods in five different years, not amenable to one trial, five different cases were launched and all of them, as already noted, have ended in conviction and the accused has preferred five separate appeals in respect of those five cases. This judgment will govern all the five appeals, being Criminal Appeals Nos. 3, 4, 5, 6 and 7 of 1977.

2. The prosecution examined one Dhanlal Rai in all these five cases as one of its material witnesses who stated that as one of the Karbaris of the accused he collected on behalf of the accused various amounts, mentioned by him in his deposition, from different tenants and paid all these amounts to the accused. By this evidence the prosecution has tried to prove that the accused collected these amounts through this witness and was thus entrusted with the amounts so collected. But this witness was not tendered for cross-examination by the accused after charge was framed as it was reported that he had died by then.

3. The learned Advocate-General has urged that as the accused had the right and the opportunity to cross-examine this witness before charge, his evidence is admissible under S. 33 of the Evidence Act. There is no doubt that under S. 33 of the Evidence Act, the evidence in a judicial proceedings of a person who has died is relevant in a subsequent judicial proceeding or at a later stage of the same judicial proceedings for the purpose of proving the truth of the facts stated in such evidence provided that the adverse party had the right and opportunity to cross-examine the deponent and that the other conditions laid down in S. 33 of the Evidence Act are satisfied. It is not disputed that the accused was given the opportunity to cross-examine this witness when he was examined before the framing of charge and there is also a clear note to that effect by the learned Sessions Judge in the deposition-sheets of this witness. But can it be said that the accused in this case had also the right to cross-examine the witness when he deposed to bring the case within the provisions of S. 33 of the Evidence Act ?

4. In other words, can it be said that an accused in a warrant case has both the right and the opportunity to cross-examine a witness before a charge is framed ? It should be noted here that in Sikkim the law contained in the Criminal Procedure Code, 1898, is still the law relating to criminal procedure and that in trial of warrant-cases the provisions of S. 252 and the succeeding sections of Chap. XXI of the said Code are followed even when such cases are instituted on police reports. S. 252 to S. 254 of the Code, which deal with taking of evidence before charge, discharge of accused and framing of charge, do not mention about any cross-examination by the accused and it is only in S. 256, which comes into play when the accused refuses to plead or does not plead or claims to be tried that express mention has been made about the right of the accused to cross-examine the witnesses for the prosecution. There is a sharp divergence of opinion among the different High Courts as to whether an accused in a warrant case (not instituted on police report) can be said to have a right to cross-examine the prosecution witnesses before a charge is framed. The Calcutta and the Patna High Courts have held that the accused has no such right while the Allahabad, the Bombay, the Madras and some other High Courts have held that the accused has such a right. Re