A. M. Bhattacharjee, J. :- The prosecution, having failed to tender one of the witnesses for cross-examination after charge in spite of repeated opportunities, applied to the Court to summon and examine three more witnesses to prove that the whereabouts of the first-mentioned witness were no longer traceable, so that his deposition before charge could be admitted in evidence under Section 33, Indian Evidence Act, 1872. In Karmadhan Lama v. State of Sikkim (1979 Cri LJ 610) I have held that in a warrant-case (not instituted on a police report) an accused has an absolute right to cross-examine a prosecution witness before charge and therefore, the statement of a witness before charge can be treated as evidence, even though the witness is not and cannot be recalled for cross-examination after charge, if before charge the accused had the opportunity to cross-examine him.

2. In this case, the witness concerned was in fact cross-examined by the accused before charge and therefore, according to the ratio of Karmadhan Lama's case (supra), the accused had both the right and the opportunity to cross-examine within the meaning of the proviso to Section 33 of the Evidence Act and the p