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SIKKIM HIGH COURT
MAN MOHAN SINGH GUJRAL, A. M. BHATTACHARJEE, J.
STATE OF SIKKIM
VERSUS
PEMBA SHERPA AND ANOTHER
Criminal Revn. No. 2 of 1980
Decided On : 23 -6 -1980
CRIMINAL PROCEDURE CODE - Section 33 - Evidence Act - Section 138 - Cross-examination of prosecution witnesses - Right of accused - Stage of trial - Admissibility of evidence - Relevancy.
Fact of the Case:
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.
Finding of the Court:
1. An accused has and cannot but have an absolute right to cross-examine a prosecution witness before any charge is framed when such a witness is examined under Section 252, Code of Criminal Procedure. 2. The right to cross-examine a witness is an integral part of the examination of a witness and any failure to provide opportunity to the opposite party to exercise such right of cross-examination will render the examination incomplete and ineffective unless such party waives or abandons such right. 3. Section 138, Evidence Act embodies and enshrines the principle of natural justice and judicial procedure and does not merely provide for the order of examination of witnesses. 4. The evidence of a prosecution witness already on record before charge, whom the accused held the right and opportunity to cross-examine, does not require the aid of the provisions of Section 33, Evidence Act, in order to maintain its judicial existence on the record, if such a witness is not or cannot be produced for cross-examination after charge. 5. The body of Section 33, sans the proviso, applies and governs the matter of admissibility of evidence given in one judicial proceeding in a later stage of the same proceeding, even if not a subsequent judicial proceeding or a second proceeding. 6. Once a witness is examined in a warrant case before charge and his evidence is admitted and the accused, having a right to cross-examine, is also given an opportunity to do so, the evidence, having thus satisfied the requirements of Section 138, Evidence Act, becomes full, complete and legally admissible and there is no provision in the Evidence Act, or, for the matter of that, in the Code of Criminal Procedure or any other law, which will render such evidence inadmissible on the ground that the witness has not been produced for further cross-examination by the accused after charge, even though the accused has a legal right to such further cross-examination. 7. The provisions of Section 540 of the Code of Criminal Procedure should be clear enough without any judicial gloss thereon. The power conferred by this Section is very wide and the repeated use of the word any throughout the length of the Section clearly indicates the widest amplitude of power and that there is nothing to limit the action under this Section to something in the interest of the accused only, but the action may equally benefit the prosecution. 8. The duty of recalling witnesses for cross-examination after charge under Section 256 of the Code of Criminal Procedure is cast on the Court and the mere fact that the prosecution has not taken steps or has failed to procure the attendance of those witnesses cannot absolve the Court of its duty to take reasonable steps to do so.
Issues: 1. Whether an accused has an absolute right to cross-examine a prosecution witness before charge? 2. Whether the evidence of a prosecution witness already on record before charge, whom the accused held the right and opportunity to cross-examine, requires the aid of the provisions of Section 33, Evidence Act, in order to maintain its judicial existence on the record, if such a witness is not or cannot be produced for cross-examination after charge? 3. Whether the body of Section 33, sans the proviso, applies and governs the matter of admissibility of evidence given in one judicial proceeding in a later stage of the same proceeding, even if not a subsequent judicial proceeding or a second proceeding? 4. Whether once a witness is examined in a warrant case before charge and his evidence is admitted and the accused, having a right to cross-examine, is also given an opportunity to do so, the evidence, having thus satisfied the requirements of Section 138, Evidence Act, becomes full, complete and legally admissible? 5. Whether the provisions of Section 540 of the Code of Criminal Procedure should be clear enough without any judicial gloss thereon? 6. Whether the duty of recalling witnesses for cross-examination after charge under Section 256 of the Code of Criminal Procedure is cast on the Court and the mere fact that the prosecution has not taken steps or has failed to procure the attendance of those witnesses cannot absolve the Court of its duty to take reasonable steps to do so?
Ratio Decidendi: 1. The right to cross-examine a witness is an integral part of the examination of a witness and any failure to provide opportunity to the opposite party to exercise such right of cross-examination will render the examination incomplete and ineffective unless such party waives or abandons such right. 2. Section 138, Evidence Act embodies and enshrines the principle of natural justice and judicial procedure and does not merely provide for the order of examination of witnesses. 3. The evidence of a prosecution witness already on record before charge, whom the accused held the right and opportunity to cross-examine, does not require the aid of the provisions of Section 33, Evidence Act, in order to maintain its judicial existence on the record, if such a witness is not or cannot be produced for cross-examination after charge. 4. The body of Section 33, sans the proviso, applies and governs the matter of admissibility of evidence given in one judicial proceeding in a later stage of the same proceeding, even if not a subsequent judicial proceeding or a second proceeding. 5. Once a witness is examined in a warrant case before charge and his evidence is admitted and the accused, having a right to cross-examine, is also given an opportunity to do so, the evidence, having thus satisfied the requirements of Section 138, Evidence Act, becomes full, complete and legally admissible and there is no provision in the Evidence Act, or, for the matter of that, in the Code of Criminal Procedure or any other law, which will render such evidence inadmissible on the ground that the witness has not been produced for further cross-examination by the accused after charge, even though the accused has a legal right to such further cross-examination. 6. The provisions of Section 540 of the Code of Criminal Procedure should be clear enough without any judicial gloss thereon. The power conferred by this Section is very wide and the repeated use of the word any throughout the length of the Section clearly indicates the widest amplitude of power and that there is nothing to limit the action under this Section to something in the interest of the accused only, but the action may equally benefit the prosecution. 7. The duty of recalling witnesses for cross-examination after charge under Section 256 of the Code of Criminal Procedure is cast on the Court and the mere fact that the prosecution has not taken steps or has failed to procure the attendance of those witnesses cannot absolve the Court of its duty to take reasonable steps to do so.
Final Decision: Revision allowed.
Key Points: - An accused has an absolute right to cross-examine a prosecution witness before any charge is framed when the witness is examined under Section 252, and this right is an integral part of the examination (!) (!) (!) . - Evidence of a prosecution witness already on record before charge remains legally admissible even if the witness is not produced for further cross-examination after charge, provided the accused had the right and opportunity to cross-examine before charge (!) (!) (!) . - The court must summon and examine additional witnesses if necessary to determine the unavailability of a witness cited by the prosecution, exercising wide powers under Section 540 of the Code of Criminal Procedure (!) (!) (!) .
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 prosecution would, therefore, if Section 33 applies, be entitled to rely on his deposition "for the purpose of proving the truth of the facts" stated therein if the prosecution could prove that, as alleged by it, the whereabouts of the witness concerned could no longer be ascertained or traced in spite of reasonable endeavours. And that is precisely what the prosecution in this case tried to do by requesting the Court through a written application to examine three more witnesses before the accused was called upon to make his statements under Section 342, Code of Criminal Procedure and that is what the learned Sessions Judge has refused to do by his impugned order. If the learned Judge had good reasons to do so, the revision shall fail; but if the reasons are not good enough the revision should succeed. It may be noted that under the provisions of the Sikkim Criminal Procedure Act, 1976, the Code of Criminal Procedure, 1898, is still the law relating to Criminal Procedure in Sikkim with some modifications one being that the trial before the Court of Session is also regulated by and according to the provisions for trial in warrant cases as contained in Chapter XXI of the Code.
3. Now the decision in Karmadhan Lama's (case) 1979 Cri LJ 610 (Sikkim) (supra) being a single-Judge decision is not obviously binding on us sitting here in Division and I have, therefore, taken this opportunity to consider afresh, with usual guidance from my Lord the Chief Justice as to whether the said decision requires reconsideration and I have thought it desirable and necessary to do so in view of the importance of the question involved and the sharp cleavage of opinion among the different High Courts on the point, not yet authoritatively settled by any decision of the Supreme Court. The decision in Karmadhan Lama's case (supra) being a decision of mine, I will be in a much more comfortable position to overcome and, if necessary, to over-rule the same, while it may be some-what embarrassing for my Lord to declare, while sitting with me, that I have gone wrong. As Lord Denning pointed out (see "The Discipline of Law" - Page 64), "it is always easier to overcome a decision when you have been a party to it yourself. You can correct your own mistakes."
4. I have, therefore, tried to examine all the reported decisions of the different High Courts and the Courts of former Judicial Commissioners that I have been able to lay my hands on, but, and this I say with all humility. I have found no reason whatsoever to depart from my view in Karmadhan Lama's case 1979 Cri LJ 610 (Sikkim) (supra) that an accused has and cannot but have an absolute right to cross-examine a prosecution witness before any charge is framed when such a witness is examined under Section 252, Code of Criminal Procedu
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