The State vs Baldev Kishan

Gurnam Singh, J.—The following question has been referred to the Full Bench: Question:

Is the evidence of a witness who, before the framing of the charge is examined, cross-examined and re-examined in a warrant case, but for the exercise of the right to further cross-examine whom u/s 256, Cr. P. C. the accused had no opportunity, is admissible in evidence if the witness subsequently dies, or cannot be found or becomes incapable of giving evidence, or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable.

The question, therefore, for determination is whether in a warrant case an accused person has absolute right of cross-examination before the framing of the charge. The decision of this question mainly depends on the interpretation of the words, "take all such evidence as may be produced in support of the prosecution" in section 252 of the Cr. P. C. This section falls in chapter 21 of the Code dealing with the trial of warrant cases and reads as follows:

Section 252 (1) When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complaint (if any) and take all such evidence as may be produced in support of the prosecution.

The other relevant section is 33 of the Evidence Act which deals with the relevancy of certain evidence for proving, in subsequent proceedings, the truth of facts therein stated. This section lays down:

Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings, the truth, of the facts which it states, when the 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: Provided that the proceeding was between the same parties or their representatives in interest:

that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding.

It is clear from the reading of this section that right and opportunity for cross-examination of the witnesses must co-exist. If an accused person has a right of cross-examination at a particular stage of proceeding and also had an opportunity of exercising that right it amounts to cross-examination in spite of the fact that he did not exercise that right. Having examined section 33 of the Evidence Act we now turn to section 244 of the Cr. P. C. relating to trials of summons cases.

Identical words ("take all such evidence as may be produced in support of the prosecution") have been used in section 244 of the Code dealing with triads of summons cases. It is universally recognised and is indeed conceded before us by both the parties that the accused person has an absolute right of cross-examining the prosecution witnesses in the trial of summons cases. There is no doubt that there is no express provision made for such cross-examination in the trial of summons cases. This right is inherent and cannot be denied to the accused person if the evidence produced at the instance of the prosecution is to be used against him. The natural question, therefore, is whether the same words used in section 252 of the Code convey a different meaning. In my opinion they do not. In this connection a reference was made to section 256 of the Cr. P. C. and it was argued therefrom that there being an express provision made for cross-examination of prosecution witnesses in this section the accused person could not have the right of cross-examination before the charge. I cannot persuade myself to accept this contention. Section 256 of the Cr. P. C. reads as follows:

Section 256(1) If the accused refuses to plead or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or if the Magistrate for reasons to be recorded in writing so thinks fit forthwith, whether he wishes to cross-examine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any) they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken and, after cross-examination and re-examination (if any,) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.

The subsequent opportunity for cross-examination provided by section 256 of the Cr. P. C. in my opinion cannot be substituted for the opportunity to which an accused person is entitled when the witnesses are examined before framing the charge. Here it is pertinent to note that section 256 of the Code does not provide a prohibition against such cross-examination. If the intention of the legislature was to the contrary it could have been easily expressed. Apart from this if the Legislature intended giving subsequent opportunity for cross-examination which, in my opinion, it did, in the nature of things it must be expressly mentioned. It is an elementary right of an accused person to test the veracity of the evidence of a witness given against him through cross-examination at the time the witness is examined, in case the statement of a witness is sought to be used against him. This right is assumed by all courts and is universally recognised, In case a subsequent right is given to the accused person out of necessity it must be expressly declared. This is exactly, in my opinion what is done by enacting section 256 of the Code. Again in section 256 the words "whose evidence has been taken" clearly indicate that complete statement has been recorded including examination-in-chief, cross-examination and re-examination. "Evidence" here cannot refer to an incomplete statement made by a witness. Further the words in section 256 "whether he wishes to cross-examine any, and if so, which of the witnesses of the prosecution" also indicate that the accused has had an opportunity of cross-examining the prosecution witnesses before the framing of charge-sheet. It also implies that ordinarily he is not expected to cross-examine all the witnesses.

Section 255 requires the charge sheet to be read and explained to the accused, and if it is done the accused is required to answer whether he is guilty or he has any defence to make. It is at this stage that exact nature of the case against him is known to the accused through a clear cut charge framed against him. When this stage is reached the accused is in a position to appreciate the prosecution evidence in its true perspective and thus can effectively challenge it through cross-examination. This is another reason explaining why a subsequent opportunity for cross-examination through section 256 of the Code is given to the accused person.

It was pointed out to us that the absence of the word "further" before the words "cross-examination" in this section clearly indicates the intention of the legislature to provide only one opportunity for cross-examination. This argument is defeated by the language used in section 257 of the Code. This section clearly gives an opportunity for cross-examination after the one given by section 256. But we find that the word "further" does not find a place in this section. It is no doubt true that the word "further" is not found in section 256. If actually the Legislature intended giving further right of cross-examination after the charge, in my opinion, it was wholly unnecessary to make use of this word. In case there was no cross-examination at all before the charge this word "further" would be altogether out of place. Apart from this in such a case the cross-examination under this section could not properly be described as further cross-examination. Normally as soon as a witness is examined-in-chief he must be cross-examined. In case of departure from this normal law the legislature must expressly say so. If the intention of the Legislature was to withhold this right from the accused it could have easily provided so in section 252 of the Code.

The right of crass-examination before the charge is more in consonance with the language used in sections 252 and 256 of the Cr. P. C. and section 138 of the Evidence Act. The argument that the Legislature could not have intended giving two rights of cross-examination to the accused has no force. There is no reason why it should not grant two such rights. In fact the Legislature has given a third right also though restricted in section 257 of the Code. The right of cross-examination commences as soon as the witness is examined by the prosecution u/s 252 Cr. P. C. But for the provisions of section 256 this right would have ended as soon as the witness was cross-examined and another witness for the prosecution was produced. In my opinion this right continues upto the stage of examination of the "first remaining witness" of the prosecution as provided by section 256. This to my mind is the reason for making the provision regarding discharge of prosecution witnesses in section 256 and not in section 252. For all these reasons I am of the opinion that the provisions in section 256 relating to cross-examination of prosecution witnesses already examined do not necessarily lead to the conclusion that there was no right of cross-examination before the charge.

It is clear that the prosecution evidence recorded before the charge and in presence of the accused is intended to be used against him. In fact this evidence forms the basis of the charge. It is an accepted fact and is indeed provided in section 253 of the Cr. p. c. that the accused is entitled to "discharge" if no case is made out against him. This "discharge" he can only earn by discrediting the prosecution witnesses through cross-examination. This is the only method of testing the worth of their evidence. If the Magistrate is required to judge the worth of their evidence before proceeding with the framing of the charge the Legislature must have contemplated that the witness was liable to be cross-examined. If this course is not permitted to him invariably a prima facie case for framing the charge against the accused will be supplied, by unchallenged prosecution evidence This naturally will have the effect of nullifying the provision of section 253 of the Code. This to my mind, could not have been the intention of the Legislature. It is a fundamental right of the accused person to challenge the evidence of the prosecution by means of cross-examination if this evidence is sought to be used against him. Moreover the proceedings before the charge are judicial proceedings and are governed by the Evidence Act. The evidence so recorded is to be used against the accused person for the purposes of framing the charge sheet. The accused, therefore, cannot be denied the right of cross-examination, in order to enable him to show a case for discharge. A view to the contrary will make the provision relating to the discharge in section 253 of the Code nugatory, s. 342 of the Cr. P. C. also lends a support to the view that a right of cross-examination before the charge exists. This section empowers the Magistrate to question the accused at any stage of any enquiry or trial for the purposes of enabling him to explain the circumstances appearing in the evidence against him after the witnesses for the prosecution have been examined and before he is called on to enter his defence. The word "examine" has been interpreted to mean a complete examination of a witness including cross-examination and re-examination. In Dibakanta Chatterjee Vs. Gour Gopal Mukerjee, Rankin J. on difference between Buckland & Cuming JJ. observed that, "The word "examine" in section 342 is to be taken in the ordinary English sense in which it covers all kinds of examination including cross-examination and re-examination".

A similar view of the word was taken by a F. B. of the Nagpur High Court in AIR 1925 44 (Nagpur) It is true that these authorities are not directly in point. But they do help in understanding the scheme of the Code and in interpreting the language used in various sections of the Code.

A reference to other sections of the Code may be helpful in interpreting the words used in section 252. Section 286, Sub section (2) lays down that,

the prosecutor shall then examine his witness

Section 289 sub section (1) says.

When the examination of the witnesses for the prosecution and the examination (it any) of the accused are concluded the accused shad be asked whether he means to adduce evidence.

10A. In either of these two sections a right of cross-examination is not expressly given. Does it mean that neither the accused when the prosecutor examines his witnesses nor the prosecutor when the accused adduces his evidence in defence has the right of cross-examination? This is unthinkable. The right of cross-examination in both the cases is recognised and in fact this is conceded before us by both the parties. The words "examine" in section 286 Sub-section (2) and "evidence" in section 289 therefore, refer to complete statement of witnesses as prescribed by section 138 of the Evidence Act. If this is the meaning of the word "evidence" given in section 289 of the Code I see no reason to attach a different meaning to the same word when used in section 252 of the Code. I cannot agree with the contention that these meanings are only given in absence of express provisions for cross-examination made in these two sections.

I have already dealt with this aspect of the case while discussing Ss. 244, 252 and 256 of the Code. It would be a mere repetition to go into the question again. Besides these sections the Legislature has used the word "evidence" without particularly mentioning the word "cross-examination" in sections 117, 137, 145, 263, 288, 350, 353, 428 and 509. It cannot be disputed that the word "evidence" used in all these sections means the entire statement of a witness covering all the three stages mentioned in section 138 of the Evidence Act.

In this connection our attention was invited to sections 208 and 202 of the Cr. p. C. Section 208 falls in chapter 18 relating to enquiry into the cases triable by the court of Sessions or High Court. In Sub section (2) a right of cross-examination of the prosecution witnesses in favour of the accused is expressly mentioned. From this it was argued that if the word "evidence" was sufficient to include cross-examination sub section (2) in section 208 was wholly unnecessary. It is true that the Legislature has made an express provision for cross-examination of prosecution witnesses in this section. The learned counsel while advancing this argument lost sight of the fact that there is a history behind this provision. Section 194 of the Code of 1861 and 191 of the Code of 1872 expressly gave the right to the accused to cross-examine the prosecution witnesses before commitment. This provision was omitted from the Code of 1882 by the Legislature obviously on the ground that the right to cross-examination was inherent in the accused as provided by section 138 of the Evidence Act of 1872. This omission created, doubt inasmuch as it was considered that the Legislature by this omission had Intended to deprive an accused of such a right before commitment. This point was considered at length in - ''Queen Empress v. Sagal Samba Sajoo'', 21 Cal 642. This case was under the Code of 1882. In this Code there was no provision in section 208 for the cross-examination of the prosecution witnesses during enquiry. The Magistrate had refused to allow the cross-examination during commitment proceedings. The learned judges deciding the case observed that,

This course besides being obviously unfair was also Illegal. The contention was raised in the absence of express provision of law. The accused was not entitled to cross-examine the prosecution witnesses during commitment proceedings.

It was for this reason that the legislature in order to remove all doubts re-enacted an express provision for cross-examination of the prosecution witnesses in sub section (2) of section 208 of the Code of 1898. Otherwise there is no explanation for this provision. I still maintain that even in the absence of this express provision for cross-examination the accused would still be entitled to the right of cross-examination. At any rate the provision of sub-section (2) of section 208 cannot justify the argument that the accused person has no right of cross-examination in absence of express provision to that effect.

Another section pointed out to us was 202 of the Code. The words used in section 202 sub-section (2A) are "take evidence of witnesses on oath". This section deals with the proceedings before the accused person is called to attend the court. The word "evidence" used in this section naturally cannot include cross-examination as this evidence is recorded in the absence of the accused. But the evidence thus recorded in the absence of the accused would still remain an evidence in the case. This section contemplates a preliminary enquiry before issue of process to the accused. So by the very nature of the case the question of cross-examination does not arise. This to my mind does not help the contention raised before us by the opposite side.

It is true that there is a conflict of judicial opinion about the right of an accused to cross-examine the prosecution witnesses before the charge. But the balance of opinion appears to be in favour of the existence of such a right. In Ramyad Singh v. Emperor, AIR 1920 Fat 149; Sultan Ahmed J. at page 150 observed,

That the accused have got the right to cross-examine the witnesses produced by the prosecution once before the charge is framed and, secondly after the charge is framed u/s 256 of the code.

In Varisai Rowther v. Emperor, AIR 1923 Mad 609 (FB) it was observed,

The accused in a warrant case has three opportunities of cross-examining the prosecution witnesses; once before the charge is framed, secondly u/s 256 and thirdly after he has entered on his defence.

In Mahomed Rahim v. Emperor, AIR 1935 Sind 13 (FB) at p. 19 it was held,

In the trial of a warrant case the Magistrate is required under the provisions of section 252 Cr. P. C. to take all the evidence produced in support of the prosecution. ''Evidence'', there can be no doubt, includes the examination, cross-examination and re-examination of a witness.

In Gurudin v. Emperor, AIR 1935 Nag 8; it was held,

The accused has a right to cross-examine a prosecution witness before the charge is framed against him and if he has failed to do so not only had he the opportunity but he had the right of cross-examining the witness, and the action of the court in treating the evidence of any such witness u/s 33 is Justified when it is found impossible to produce him for further cross-examination under the provisions of section 256 Cr. P. C.

In Mahomed Hussain v. Fakhrullah Beg AIR 1932 Oudh 298; Srivastava J. differing from Kisch J. observed:

When section 252 requires the Magistrate to "take all such evidence as may be produced in support of the prosecution" such evidence must be taken in the manner laid down in section 138, Evidence Act and if the accused so desires he cannot be refused an opportunity to cross-examine the witnesses produced in support of the prosecution. The opportunity allowed by the Legislature to the accused in section 255 of cross-examining the witnesses for the prosecution after the charge-sheet has been framed cannot be substituted for the opportunity to which he is entitled when the witnesses are examined and before the charge-sheet is framed.

This view finds further support in W. H. Lock-ley v. Emperor, AIR 1920 Mad 201; K. C. Menon v. Krishna Nayer, AIR 1923 Mad 989; In re In Re: Muthiah Chetty, .

Now I shall deal with the authorities cited to support the opposite view. In emperor v. C. A. Mathews, Emperor Vs. C.A. Mathews, it was observed,

That an accused in a warrant case has no right to cross-examine the prosecution witnesses until after the charge was framed. The Magistrate however, in his discretion could allow the accused to cross-examine before the charge at his request.

In this case the question was about the admissibility in evidence u/s 33 of the Evidence Act of a statement of a witness made before the Magistrate at the time the case was being tried as a warrant case. The accused was subsequently committed. At the trial the witness was not available for examination in the Sessions Court. The real question in the case which, however, was not raised before the learned Judges was whether in absence of observing the procedure laid down for enquiries under chapter 18 such a statement could be used u/s 33 of the Evidence Act. The point raised however, was that the accused person u/s 252 of the Cr. P. C. had no right of cross-examination. Cuming J. during the course of his judgment observed,

Now as far as I can see the accused in a warrant case has no right to cross-examine the prosecution witnesses until after the charge has been framed. The Magistrate may in his discretion allow him to do so, and probably if the accused requested would allow him to do so but the accused cannot claim as of right to cross-examine until the charge has been framed. Section 138 Evidence Act, on which the prosecution rely deals not with the rights of the party but only provides the order in which the proceedings are to be conducted. See the case of -''Ashirbad Muchi v. Maju Muchini, 8 Cal WN 838 where it was held that the Magistrate should give the accused an opportunity to cross-examine even though the charge may not be framed. But that is not the same as saying that the court must give him an opportunity. No doubt section 256 does not prohibit cross-examination at a previous stage but that is not the same as saying that the accused has any right to cross-examine. I am of opinion that until the stage of the case provided for in section 255 is reached the accused has no right to cross-examine and so the evidence of Mr. Milne is not admissible in evidence u/s 33.

It is obvious that the learned Judge has merely relied on the language of section 252 in arriving at the conclusion which he did. He also took a support from a case reported in -''Ashirbad Muchi v. Maju Muchini, 8 Cal W N 838. With great respect if I may say so the learned Judge has not interpreted this case correctly. This was a case in which the accused had applied for transfer of his case from the court of Magistrate as he was not allowed to cross-examine the prosecution witnesses before (he charge. In the Judgment which is a short one the learned judges observed:

We think that the Deputy Magistrate acted bona fide from a mistaken view of the law and that therefore, there is no good ground for transferring the case. We direct him to proceed with the trial. We desire to point out that he should at once give the accused an opportunity to cross-examine the prosecution witnesses, if they should so desire, even though the charge may not be framed.

From the observations made in this judgment it is clear that the direction to the Magistrate was not to allow cross-examination as a matter of grace, but was a direction to him to allow it as a matter of law. The next case cited in support of this view is - Mahammad Jalaluddin Mandal and Others Vs. Emperor, . It was held in this case that the accused person had no right to cross-examine the prosecution witnesses in a warrant case before the charge is framed against him. In this case the witness was examined-in-chief and the right of cross-examination was reserved. After examination of prosecution witnesses a charge was framed. The witness in question was recalled and was further examined-in-chief. After this his cross-examination commenced. But before this cross-examination could be concluded the witness was not available for continuing his cross-examination. It was said that the witness was not available on account of illness. It was found on facts by the learned Judges that the fact of his illness was not proved on the record. In view of this finding on fact it was really unnecessary to go into the question whether the accused had a right of cross-examination before the charge was framed. The statement was not relevant in this case on this ground atone.

Another point of distinction in this case was that the witness was further examined-in-chief after the charge. This gave a fresh right of cross-examination to the accused. This right no doubt remained unfulfilled. Even section 138 of the Evidence Act provides that if in re-examination a new matter is introduced the adverse party has the right of further cross-examination. The facts of this case are not clear as to how the witness was further examined-in-chief. I have no doubt however, that if a witness is examined in chief after the charge is framed it gives the accused person a fresh right of cross-examination. Apart from this in view of the fact that the non-availability of the witness on account of illness was not proved it was not necessary to decide whether the accused had a right of cross-examination before the charge. Moreover the fact that cross-examination was reserved after the witness was examined-in-chief implies the right of cross-examination. Under the particular circumstances of this case the learned Judges if I may say so with respect, arrived at a correct conclusion that the statement of the witness as recorded was not admissible u/s 33 of the Evidence Act.

In Lachmi Narain Vs. Emperor, held the view that the accused had no right of cross-examination before the framing of the charge, but the Magistrate would generally be exercising a proper discretion if they permit some proper cross-examination at this stage. While considering section 244 of the Cr. P. C. the learned Judge agreed that there was an absolute right of cross-examination vested in the accused person. But in a warrant case due to the existence of section 256 of the Code giving a right of cross-examination expressly to the accused there was no right of cross-examination before the charge.

Another reason for arriving at this view by the learned Judge was that section 208 sub-section (2) expressly gave the right of cross-examination. In absence of section 256 in the trial of a warrant case according to the learned Judge the accused would have an absolute right of cross-examination. Further view of the learned Judge was that the word "further" did not occur in section 256 of the Code. I ''have dealt with all these points in the earlier part of the judgment, I can only say here that with all respect to the learned Judge I do not agree with the view adopted by him. During the course of this judgment it was remarked that u/s 254 the Magistrate can frame a charge at any stage and without examining all witnesses for the prosecution. From this it was argued that it could not be the intention of the Legislature that witnesses examined before the charge should be cross-examined twice, and those examined after the charge should be cross-examined only once.

All that I can say about it is that after this charge is framed against the accused person a clear cut case is presented to him. After that stage he is in a position to cross-examine the prosecution witnesses effectively keeping in view the exact charge made against him. Apart from this the Legislature has granted another opportunity of cross-examination to the accused person in the provisions of section 257 of the Code. So in fact the accused does get second opportunity of cross-examining those witnesses who are examined by the prosecution for the first time after the charge is framed. A reference In this judgment is also made to section 286 sub section 2 and section 289 sub section 1. I have already dealt with this aspect of the case also in the earlier part of the judgment.

Another judgment relied upon for this view is - ''Mahomed Hussain v. Fakhrullah Beg'', AIR.1932 Oudh 298 already referred to where Kisch J. differed on this point from Srivastava J. Almost the same reasoning is given in this judgment, which was expressed in Lachmi Narain Vs. Emperor, 1. I have already dealt with all the points raised and relied upon by the learned Judge in this judgment. In the judgment a reference is made to sections 244, 202, 208, sub section 2 of the Cr. P. C. It would be mere repetition for me to go into the details of these points which are already dealt with.

The next case relied upon was - G.L. Biswas and Others Vs. The State, This case is not exactly to the point. This was a case which was originally being tried as a warrant case. But later the Magistrate decided to commit the accused to the court of Sessions, to stand his trial there. The question, therefore, before the learned Judges was whether it was incumbent on the Magistrate to follow the procedure laid down in chapter 18 when the Magistrate had decided to commit the accused. It was found that it was obligatory on the Magistrate to follow the procedure laid down under chapter "18 for enquiries for the cases triable by the court of Sessions. During the course of judgment the learned Judges observed, "That the accused has no right of cross-examination in a warrant case before the charge is framed."

If I may say so with respect it was not necessary to go into this question for the purpose of the decision of this particular case. However, with great respect I can only say that I differ from this view for the reasons already stated. The last case cited in support of this view was -''Lachhman Singh accused petitioner v. Crown complainant respondent'', 10 Patiala LR 86.

This is a judgment by one of my learned brothers Kesho Ram J. as a judge of the erstwhile Patiala State High Court. It was observed by my learned brother that,

In a warrant case the cross-examination of a witness can be claimed as of right by an accused after the charge has been framed, hence the evidence of a witness given before the framing of the charge is not admissible u/s 33 of the Indian Evidence Act.

For arriving at this conclusion my learned brother mainly relied upon a judgment of the Calcutta High Court already cited Emperor Vs. C.A. Mathews, It appears that no other authority was cited before him nor any other points which have been taken into consideration by me were pressed upon his attention or present to his mind when his judgment was delivered. At any rate no discussion on those points is found in the judgment. In this judgment reliance is also placed on section 256 of the Code for giving right of cross-examination to the accused for the first time after the charge is framed and when section 256 comes into operation. I have already dealt at length with this point in the earlier part of the judgment. If I may say so with great respect I am unable to agree with the view adopted by my learned brother in the case cited.

It is, however, note-worthy that in all these cases the learned Judges have referred to the desirability of giving an opportunity to the accused person for cross-examination before the charge.

For the reasons stated above I am of the opinion that if an accused person is given an opportunity for cross-examining the prosecution witnesses before the charge and if after the charge is framed the witness is not available for the purpose of proceedings u/s 256 of the Code his evidence is relevant and is admissible and this is an evidence in the case to be used for and against the accused.

Towards the end of his arguments the learned Advocate General contended that the matter was not governed at all by section 33 of the Evidence Act. The point was, however, not fully developed by either side. Learned Advocate General cited some authorities in support of his contention. I am inclined to agree with the contention raised by him. Section 3 Indian Evidence Act defines ''Evidence''.

Evidence" means and includes-

(1) All statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry; such statements are called oral evidence;

(2) All documents produced for the inspection of the court; such documents are called documentary evidence.

According to section 33. evidence given by a witness in a judicial proceeding is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states when the witness is not available, provided that the proceeding was between the same parties, the adverse party in the first proceeding had the right and opportunity to cross-examine & the questions in issue were substantially the same in the first as in the second proceeding.

It is an established rule of law that the evidence of a witness must be direct; the witness must himself appear in court to depose to the facts perceived by him, but an exception to this rule is introduced through section 33 of the Act which lays down that when a witness is not available to make a statement in court but he had on a previous occasion given evidence in proceedings between the same parties involving the same issues, and the parties had the right and opportunity to cross-examine such a witness, this section on grounds of necessity allows the previous deposition to be brought on the record as evidence in subsequent judicial proceedings or in a later stage of same judicial proceedings between the same parties. In short section 33 enables the admission of evidence in judicial proceedings provided certain conditions mentioned therein are fulfilled. Thus it declares the evidence given by a witness in a judicial proceeding to be relevant for the purposes of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceedings, the truth of facts which it states. The witness is not examined under this section but under other sections of the Act. The admissibility of his evidence and also its relevancy is determined at the time of his examination by the court in accordance with law. So once his deposition is admitted on the record as admissible evidence no question of its admissibility or relevancy arises at any subsequent stage. The only question left to be determined is its credibility. The deposition so recorded remains on the record. It follows from this that reference in section 33, to relevancy of evidence given by a witness in a judicial proceeding does not refer to oral evidence given by a witness in the court in those very proceedings. It obviously refers to a documentary evidence, i.e. the record of a deposition made by a witness in a previous judicial proceedings or at an earlier stage of the same judicial proceedings. Section 33 merely deals with the tendering in evidence of a statement previously made by a witness when on account of reasons stated therein the witness cannot be produced to make a statement in court. When this situation arises documentary evidence in the form of statement of the witness previously recorded is allowed to be given in evidence. But for this section the previous statement of a witness if he was not available would be inadmissible and irrelevant. Section 33, therefore, does not govern a situation in which the deposition of a witness had already been brought on the record as relevant or in which the question of witness''s presence or absence does not arise. The attendance of a witness is only required when his oral evidence is to be introduced into the record. After this oral evidence has thus been introduced the only other question left for determination is the weight to be attached to his evidence. When the court is determining the worth of the evidence given by a witness, it is not required to consider section 33 as the attendance of the witness is not required at that stage. This section only deals with the introduction of a documentary evidence i.e. the evidence which has already been recorded and relevancy and admissibility of which was determined at the time it was so recorded. It therefore, obviously refers to a situation when a documentary evidence in the form of a recorded statement is introduced in evidence in subsequent proceedings between the same parties involving same issue and when the witness for the reasons stated in section 33 is not available to give evidence. This section therefore, cannot govern the situation when the statement is recorded in the same continuous proceedings and is already present on the record of those proceedings. Such a statement recorded at the instance of the witness when he appears to give evidence is already on the record of those very proceedings and thus there is no occasion for making use of section 33. Such a deposition can be used in favour or against the accused. It has not to be brought or transferred from one record to the other. The evidence of a witness in the form of a recorded statement is very much present on the record of such proceedings. In my opinion, therefore, the cases contemplated by this section are quite different from the one under reference.

Reliance was placed on the words "in a later stage of the same judicial proceedings" to bring the case within the purview of section 33 of the Evidence Act. The words "later stage" in my opinion contemplate a stage at which attendance of a witness is required for the purpose of introducing his evidence. When the deposition of a witness is already recorded the question of introducing his evidence does not arise. As already mentioned the only question then left for determination is the credibility of such evidence. The stage when the court considers the worth of this evidence is not a later stage. If the contention was to prevail then day to day proceedings during the same trial would mark distinct stages and one such stage with reference to the other would be the later stage. This situation in my judgment was not contemplated by the use of these words in section 33. Once a witness''s evidence is complete his non-availability cannot in any way affect its admissibility or relevancy. The cases contemplated by the words "later stage of the same judicial proceedings" are of the following type:

When the appellate court on appeal against conviction by the accused orders retrial and if during such trial, a witness who had already given evidence in the previous trial is not available and the conditions laid down in section 33 are fulfilled his statement thus made in the previous trial becomes relevant for the purposes of a later trial. Again take a case of proceedings u/s 350 of the Cr. P. C. Thus when de novo proceedings were started by a succeeding Magistrate and witness is not available to depose in court, his previous statement is permitted to be given in evidence under this section. The words, "later stage of the same judicial proceedings" in my opinion can hardly apply to the proceedings subsequent to the framing of a charge in a warrant case.

It was argued before us that in a warrant case the proceedings previous to the framing of the charge is an "enquiry" and the proceedings subsequent to the framing of a charge is a "Trial". This contention is not supported by any statutory provision of law. The distinction in my opinion is arbitrary and without any foundation. Enquiry is defined in section 4 (k) of the Criminal P. C. It includes ''every inquiry other than a trial conducted under this Code by a Magistrate or court". On the other hand the word "trial" is not defined in the Code. According to Wharton''s Law Laxicon it means "the examination of a case, civil or criminal, before a Judge who has jurisdiction over it, according to law of the land." This definition also does not help so much. So this word has to be construed with regard to particular context in which it is used. Section 5 of the Cr. P. C. lays down that "all offences under the I. P. C. shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained". From the reading of this definition I am clearly of the opinion that where the word "enquired" is used in the Code the proceedings are enquiry and where the word "trial" is used the proceedings are a trial. This distinction is maintained throughout the Code of Criminal Procedure. There are several sections in the Cr. P. C. which make use of the words "enquiry" and "trial". Proceedings contemplated by section 107 etc. in chapter 2 relating to security for keeping the peace and for good behaviour, section 122 of the Code where the Magistrate can hold an enquiry with a view to accept or reject the surety offered, section 139 A relating to nuisance etc. to the public in the use of any way etc., sections l45, 147 and 148 in chapter 12 relating to disputes as to immovable property, section 186 falling in chapter 15, section 202 in chapter 16 where the Magistrate is empowered to postpone the issue of process for compelling the attendance of the accused and empowering him to enquire into the matter before the accused is summoned, sections 428, 464 and 476 are described as "Enquiries". On the other hand the proceedings in a warrant case upto the stage of framing of a charge are not described as enquiries. Chapter 21 relating to the trial of warrant cases is headed "trial of warrant cases by Magistrates". The very first section in this chapter (section 251) lays down:

The following procedure shall be observed by Magistrates in the trial of warrant cases.

This shows that the entire proceedings under this chapter beginning from the examination of the first prosecution witness to the end are designated as a "trial". In fact all the proceedings taken in the presence of an accused person in connection with an offence for which he is tried is trial. In this view I am supported by an authority of Bombay High Court ''Ramchandra v. Emperor'', AIR 1944 Bom 14; in which it was observed,

In a warrant case the trial commences when the Magistrate starts the inquiry, i. e. takes his seat in court with the accused in the dock in front of him and not when the charge is framed.

The same view was adopted in ''Gomer Sirda v. Queen-Empress'', 25 Cal 863. Maclean C. J. at page 865 observed,

The ''trial'' to my thinking means the proceeding which commences when the case is called on, with the Magistrate on the Bench, the accused in the dock, and the representatives of the prosecution, and for the defence if the accused be defended, are present in court for the hearing of the case.

Similarly there are several sections in the Code which use the word "trial".

Sections 191, 262, 341, 351 (2) and 535. Section 262 falls in chapter 22 relating to summary trial and lays down the procedure for summons and warrant cases. It says that,

In trials under this chapter, the procedure prescribed for summons-cases shall be followed in summons cases, and the procedure prescribed for warrant cases shall be followed in warrant cases, except as hereinafter mentioned.

Section 535 falls in chapter XLV and relates to irregular proceedings. It deals with the effect of omission to frame a charge. Sub section 2 lays down that if the omission to frame charge has occasioned a failure of justice the court shall order that the charge be framed and the "trial be recommenced from the point immediately after the framing of the charge." The word "recommenced" is worthy of notice. Similarly words "trial has begun" are used in section 351 sub-section 2.

It is, therefore, obvious that in the trial of a warrant case this word must necessarily refer to the proceedings starting with the examination of the first prosecution witness. Again take the case of section 423 of the Code, which deals with the powers of appellate court in disposing of appeals. This section empowers the court on appeal from conviction to order retrial. This cannot be interpreted to mean the trial starting from the stage of the framing of the charge. It clearly refers to fresh trial beginning with the examination of the first prosecution witness. All this clearly indicates that the proceedings in a warrant case is a trial from start to finish. In my opinion, therefore, there is no justification for the view that the framing of charge "marks the boundary" between an ''enquiry'' and ''trial''. As already observed if the entire proceedings in a warrant case is a trial there is no warrant for the proportion that only the proceedings subsequent to the framing of the charge is trial and as such, forms a ''later stage'' in the whole judicial proceedings. In this view I am supported by an authority of the Allahabad High Court.

In State and Others Vs. Bansu and Others, considered this question at considerable length. He has referred to several authorities during the course of his judgment. It is needless for me to refer to all those authorities here. After discussing the authorities which took a contrary view to the one expressed above the learned Judge at page 673 observed,

I find it difficult to understand the division of the proceedings in a warrant case into ''enquiry'' and ''trial''; there is nothing in the Code of Criminal Procedure, to warrant the conclusion that the framing of a charge marks the boundary between ''inquiry'' and a ''trial''. On the contrary the whole proceedings in a warrant case are designated as a ''trial'' in the Code.

If I may say so with great respect I agree with the observations made by the learned Judge.

A few authorities were referred to during the course of arguments to show that the stage before the framing of charge is an ''enquiry'' and subsequent to the charge is a ''trial''. Desai J. in his learned judgment has dealt with all these authorities. It would be mere repetition to discuss them in detail any more. Some Madras authorities were also cited. They dealt with section 436 of the Code. This section deals with the powers of a superior court to order

further enquiry into any complaint which has been dismissed or into the case of any person accused of an offence who has been discharged.

From this it was argued that the proceedings which end in the discharge of an accused person is ''enquiry''. I can''t persuade myself to accept this argument. I am clearly of the view that the words ''further enquiry'' in section 436 of the Code are not used in the restricted sense in which the word ''enquiry'' is used in other parts of the Cr. P. C. Here these words are intended to describe an Act and not a proceeding whereas the use of this word ''enquiry'' with the word ''trial'' in other parts of the Code describes a proceeding. Therefore, the contention that the proceedings which end in the discharge of an accused person is ''enquiry'' in my opinion cannot prevail. The argument that, the use of the words, ''triable'' and ''competent to try'' in section 254 indicate that the trial ''begins after the framing of the charge'' is not tenable. Section 254 of the Cr. P. C. deals with the framing of a charge when the offence appears to have been prima facie made out. The use of the words ''triable'' and ''competent to try'' merely described the nature of the offence. They do not convey the meaning that the proceedings before the stage of the framing of the charge was not a ''trial''. Again in section 256 the words ''claims to be tried'' do not mean that the trial of the accused begins from the stage of his making such a claim. As already remarked the trial in a warrant case commences as soon as the accused appears in court and the Magistrate starts the enquiry.

For the reasons stated above I am inclined in favour of the view that section 33 of the Evidence Act does not govern the matter at all. In. this view I am supported by a number of authorities. In-''Mangal Sen V. Emperor,'' AIR 1929 Lah. 840 (2); Johnstone J. observed

The evidence of P. L. Jaini is more direct, he himself being the alleged borrower, but a difficulty has arisen in this instance. He was examined by the prosecution and no cross-examination was put to him. After the charge it was discovered that he was so ill that he could not travel from meerut, and when interrogatories were sent to him he was not in a fit condition to answer the questions put to him. The result is that he was never subjected to cross-examination. It was contended on this account that his evidence cannot be considered because his statement is incomplete... The correct rule, according to that authority is that such evidence is admissible, but that the weight to be attached to it depends upon the circumstances of each case.

The authority relied upon by the learned Judge was; Maharaja of Kolhapur Vs. S. Sundaram Ayyar and Others, In - Mst. Horil Kuer v. Rajab Ali, AIR 1935 Pat. 34; Rowland J. held.

The deposition of a witness who has been examination-in-chief but has not been cross-examined on account of certain circumstances which made the cross-examination impossible, need not be ignored and can be treated as evidence on the record. The weight to be attached to such evidence depends on the circumstances and the court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached.

In- Srikishun Jhunjhunwalla Vs. Emperor, J. held;

Where a witness dies after examination-in-chief and before cross-examination his evidence is admissible but the degree of weight to be attached to it depends on the circumstances of the case. Section 33 does not apply in such a case.

A similar view was adopted by Allsop and Mathur JJ. in Balwant Singh Vs. Ram Charan Singh,

A contrary view was taken in- Narsingh Das Vs. Gokul Prasad and Others, ; by Mears C. J. and Lindsay J. It was observed:

Evidence of a witness, who dies before his cross-examination, cannot be admitted, as it cannot be said to be concluded." In coming to this conclusion the learned Judges relied on 5 Calcutta Weekly Notes 230.

These authorities related to a case in which a woman was examined on commission in a Civil suit and at a later stage of the trial the statement was sought to be put in evidence. This case is discussed and distinguished in- Balwant Singh Vs. Ram Charan Singh, referred to above. If I may say so. with respect, I cannot agree with the view adopted there. I still maintain that such a deposition is legal evidence in the case. The question of weight to be attached to such evidence is. however, a different matter altogether. The balance of authority is in favour of the view that such a statement should be treated as evidence in the case. The probative value of such evidence depends on the circumstances of each case. I am in full agreement with this view.

For the reasons stated above my answer to the question referred to the F. B. by my learned brothers is in the affirmative.

Chopra, J.

I agree.

Passey, J.

The question referred to the Full Bench

Is the evidence of a witness who, before the framing of the charge is examined, cross-examined and re-examined in a warrant case, but for the exercise of the right to further cross-examine whom u/s 255 Cr. P. C. the accused had no opportunity, is admissible in evidence if the witness subsequently dies or cannot be found or becomes incapable of giving evidence, or is kept out of the way by the adverse party, or his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.

is not free from complexity. Neither side could refer us to any decision of the Pepsu High Court on the subject. I had however as a Judge of the Patiala High Court in - ''Lachhman Singh V. Crown,'' 10 Patiala L. R. 86 decided on 8th Assauj, 1998/13th Sept. 1941 held that in a warrant case the cross-examination of a prosecution witness can be claimed as of right by an accused after the charge has been framed and. therefore, the evidence of a witness given before the framing of the charge when the accused has no absolute right of cross-examination, is not admissible u/s 33 of the Indian Evidence Act. Of the various decided cases only Emperor Vs. C.A. Mathews, was cited before me although there were Lachmi Narain Vs. Emperor, ; - ''Mohomed Hussain v. Fakhrullah Beg''. AIR 1932 Oudh 298 and - ''Gurudin v. Emperor'', AIR 1935 Nag. 8, which could also be referred to then. In no case decided before Emperor Vs. C.A. Mathews, , was the question whether an accused had a right to cross-examine the prosecution witnesses in a warrant case before the framing of the charge directly under consideration. In Lachmi Narain Vs. Emperor, '' the view similar to the one I had adopted in '' 10 Patiala L. R. 86'' was taken. In '' AIR 1932 Oudh 298'' Shrivastava and Kisch JJ. composing the Division Bench wrote dissenting opinions on the point of Law in question, but concurred in the final order and rejected the revision petition. In - ''Guru Din V. Emperor,'' AIR 1935 Nag 8 it was held by Grille J. C. that the accused has a right to cross examine a prosecution witness before the charge is framed against him and if he has failed to do so not only had he the opportunity but he had the right of cross-examining the witness, and the action of the Court in treating the evidence of any such witness u/s 33 is justified when it is found impossible to produce him for further cross-examination under the provisions of S. 256 Criminal P. C. In - G.L. Biswas and Others Vs. The State, and S.C. Mitter Vs. The State, the question was decided as in Lachmi Narain Vs. Emperor, .'' Judicial opinion in India on the question involved in this reference is not uniform; although the preponderance of authority is in support of the view taken by me in-''Lachhman Singh v. Crown.'' The point of Law substantial as it is. has been argued at great length by counsel on both sides. I have had the advantage of going through the judgment of my brother Gurnam Singh J. with which Chopra J. has also concurred; but I do not feel converted to change my view expressed in - ''Lachhman Singh v. Crown''.

I will start by referring to Section 33 LEA. which provides an exception to the general rule that all evidence must be direct. Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it. is relevant for the purpose of proving in a subsequent judicial proceeding or any later stage of the same judicial proceeding, the truth of the facts which it states when the 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. This provision is subject to three Provisos: (a) that the proceeding was between the same parties or their representatives-in-interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding. We are here concerned with Proviso (b) which requires that the adverse party in the first proceeding must have had the right and opportunity to cross-examine the witness. It follows from this Proviso that where the adverse party had the opportunity but not the right to cross-examine the witness in the first proceeding, the evidence of that witness in the first proceeding would not be admissible in a subsequent proceeding.

Now comes the question whether an accused in a warrant case has the right to cross-examine prosecution witnesses before the framing of the charge. The procedure for the trial of warrant cases by Magistrates is laid down in Chapter 21 of the Code of Criminal Procedure of which Section 252 (1) says that

when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution.

Section 253 empowers the Magistrate to discharge the accused if after taking all the evidence referred to in Section 252 and examination of the accused (if any), he thinks that no case against the accused has been made out. Section 254 provides for the framing of the charge when the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence which the Magistrate is competent to try. Section 255 requires that the charge as drawn up u/s 254 must be read and explained to the accused and his answer recorded whether he pleads guilty or has any defence to make. Then comes Section 256 (1) which may be repeated in extensor:

If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be so re-called and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and, after cross-examination and re-examination (if any) they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.

There is yet another Section in addition to Section 256 pertaining to the right of cross-examination by the accused, i. e., Section 257 which comes into play after the accused has entered upon his defence. The accused can at that stage apply to the Magistrate to issue process for compelling the attendance of any witness for the purpose of examination or cross-examination or the production of any document or other thing, and the Magistrate would be bound to issue such process unless the application is vexatious or has been made with a view to unnecessarily prolong the proceedings or for defeating the ends of justice. The Magistrate refusing the application of the accused has to give grounds for such refusal in writing and under the proviso to sub-section (1) of Section 257 the Magistrate-will issue process if he is satisfied that it is necessary for the purposes of justice to issue it for the attendance of a witness or for the production of any document, even though the accused had cross-examined him or had the opportunity of cross-examining him after the charge had been framed. Sections 252 to 257 have been quoted by me to show that in the trial of warrant cases no right has been given to the accused to cross-examine prosecution witnesses before the charge and that after the framing of the charge he has an express and absolute right of cross-examination u/s 253 and a further right to cross-examine u/s 257, though the latter right is a restricted right, which may be denied by the Magistrate under certain circumstances mentioned in Section 257 itself.

The learned Advocate General has laid stress on the words "take ail such evidence as may be produced in support of the prosecution" as they appear in Section 252 (1) and also on the fact that identical words are contained in Section 244 falling in Chapter 20 relating to the trial of Summons cases. His argument is that the words "take all such evidence as may be produced in support of the prosecution" used in Section 244 and Section 252 should have the same meaning and as those words have always been interpreted to give an accused the right to cross-examine the prosecution witnesses as they are examined in-chief in a Summons case, there is no reason why a different meaning be placed on those words when the case happens to be a warrant case. He has also referred to Section 138 of the Indian Evidence Act prescribing the order in which the recording of the statement of witnesses is to be completed. Section 138 I. E. A. lays down that witnesses shall be first examined in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The contention is that the examination of a witness or his evidence cannot be said to be complete unless he has been cross-examined and re-examined and the intention of the Legislature in providing in Section 252 Cr. P. C. that the Magistrate shall "take all such evidence as may be produced in support of the prosecution", was not that the order of examination of witnesses as specified in Section 138 I. E. A. be departed from, transgressed or abbreviated and cross-examination of the witness deferred till after the charge is framed.

The argument would appear to carry plausibility but has, in my view, no force. Section 130 I. E. A. provides only the order in which a witness is to be examined. He shall first be examined in-chief, then cross-examined, if so desired by the adverse party and then re-examined, if so desired by the party calling him. The examination of a witness shall not be complete unless all the three stages have been gone through. But Section 138 I. E. A. does not make it imperative that all the three stages must be gone through at one and the same time. It does not intend that the cross-examination of a witness must follow immediately his examination-in-chief is concluded. Whereas Section 138 I. E. A. provides for one cross-examination, the Criminal Procedure Code gives two rights, at any rate, of cross-examination in warrant cases, viz, one u/s 256 and the other although a restricted one u/s 257 Cr. P. C. In the presence of Section 256 it cannot be said that cross-examination of a witness cannot be held over. Although therefore the manner in which the evidence of a witness is to be taken down is specified in Section 138 I. E. A., the Section does not enjoin that the witness after his examination-in-chief, must be cross-examined immediately. The cross-examination can be reserved for a later stage at which the accused can under the Law exercise his right of cross-examination.

I am supported in this view by the decisions in Emperor Vs. C.A. Mathews, and - Lachmi Narain Vs. Emperor, and also by the view of Kisch J. in -''S. Mahomed Hussain v. Fakhrullah Beg'', AIR 1932 Oudh 298. In Emperor Vs. C.A. Mathews, , which was a Division Bench Ruling, it was held that "Section 138 I. E. A. deals not with the rights of the party but only provides the order in which the proceedings are to be conducted." In Lachmi Narain Vs. Emperor, King J. made the following observation:

Section 138 I. E. A. merely lays down the order of the examination of witnesses, namely, that they should first be examined in-chief and then (if the adverse party so desires) cross-examined and then (if the party calling the witness so desires) re-examined. This does not indicate a right of cross-examination immediately after the examination-in-chief, when express provision has been made for exercising the right of cross-examination at a later stage, it is perfectly clear that u/s 256 Cr. P. C. the accused has a right to cross-examine prosecution witnesses after the charge had been framed. Section 138 I. E. A. merely lays down that cross-examination shall be allowed at some stage after the examination-in-chief and Section 256 may well be construed as indicating the proper stage for cross-examination in the trial of warrant cases. Section 138 I. E. A. does not indicate that the adverse party shall be entitled to cross examine a witness more than once.

In AIR 1932 Oudh 298, Kisch J. expressed a similar opinion. This is what the learned Judge said:

It is contended that the word ''evidence'' in Section 252 Cr. P. C. must be taken to include examination-in-chief, cross-examination and re-examination (if any) and the wording of Section 138 I.E.A. is referred to as showing that the examination of a witness includes examination-in-chief, cross-examination and re-examination..., Section 138 of the Evidence Act does not advance the matter further. It merely lays down the order of the examination of the witnesses. The words of this Section can hardly be construed to mean that the right to cross-examine arises immediately after the examination-in-chief, particularly when express provision is made for exercising the right of cross-examination at a later stage.

In my opinion, therefore, the words ''take all such evidence as may be produced in support of the prosecution'' in Section 252 (1) Cr. P. C. mean that the order of recording evidence shall be the one provided by Section 138 I.E.A.; but they do Hot mean that in that order there is a necessary and imperative indication that the cross-examination must come immediately after the examination-in-chief even though there may be an express provision in the relevant statute, making it permissible to postpone cross-examination to a subsequent stage. The meaning which the learned Advocate General wishes to be given to the words "take all such evidence" in Section 252 (1) Cr. P. C. cannot be read in those words by reference to Section 138 I.E.A.

We have now to see if the language used in Section 252 (1) namely, that

when the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution,

includes an implied imperative direction that the accused must be given the right to cross-examine the prosecution witnesses immediately after they are examined in-chief. It is pointed out that the words in Section 252 (1) being the same as used by the Legislature in Section 244 Cr. P. C. which occurs in the Chapter 20 relating to the trial of summons, they should also have the same meaning as has invariably been given to them in Section 244, namely, that they include the right of the accused to cross-examine prosecution witnesses. The argument is attractive but has no real substance. In the Chapter relating to the trial of Summons cases there is no provision of the nature given in Section 256 or Section 257 Cr. P. C. In warrant cases the right of cross-examination is conferred in clear language by Section 256 Cr. P. C. and that right comes into existence after the framing of the charge. The word ''evidence'' in Section 252 (1) should, I agree, carry the meaning intended by Section 138 I.E.A., that the examination of a witness would not be complete unless he has been, if the accused so desires cross-examined and if the prosecution requires, re-examined. But Section 138 I.E.A. does not make provision for cross-examination by the accused more than once, and in a Warrant case one right of cross-examination is expressly provided by Section 256 Cr. P. C. In Summons cases, for want of a similar provision conferring the right of cross-examination upon the accused at a subsequent stage, his right of cross-examination has to be inferred to be present in the words ''take all such evidence'' at the stage when the prosecution witness is examined in-chief. There is no other occasion in a Summons case for the accused to cross-examine the Prosecution witnesses.

Practically the very words as have been used in Sections 244 and 252 Cr. P. C. appear in Section 208 Cr. P. C. but sub-section (2) of Section 208 gives an express right to the accused to cross examine the prosecution witnesses after they are examined by the prosecution. In sub-section (2A) of Section 202 Cr. P. C. a Magistrate inquiring into a case u/s 202 can if he thinks fit ''take evidence of witnesses on oath''. At the stage contemplated by Section 202 there can be no question of any cross-examination by an accused person as process against him has yet to issue and yet the words ''take evidence'' have been used. This would illustrate that the use of the word ''evidence'' in different sections has not the same meaning in all of them so far as the right of cross-examination of the accused goes.

Express mention of the right of cross-examination in Sections 256 and 208 (2) and the absence of any such provision in Section 244 induce me to form the view that in Section 244 alone the word ''evidence'' is to include the right to cross-examine the witness before the charge but where a separate provision for cross-examination exists then the words ''take all such evidence as may be produced in support of the prosecution'' cannot be construed to give an independent right of cross-examination earlier than the framing of the charge. Section 256 Cr. P. C, no doubt, does not prohibit cross-examination at a previous stage but that again is not equivalent to saying that the accused has the right to cross-examine before the stage of framing the charge is reached. Section 256 says that the accused shall be asked whether he wishes to cross-examine any and if so which of the witness for the prosecution whose evidence has been taken. It does not state that the accused shall be required to say whether he would further cross-examine any prosecution witness which shows that the accused can hold over the cross-examination as of right till after a charge has been framed against him.

There is another argument against the right of the accused to cross-examine the prosecution witness before the charge and that springs from the wording of Section 254 Cr. P. C. u/s 254 the whole of the prosecution evidence need not be examined before the charge. A charge can be framed after the examination of the complainant only. In that case the other prosecution witnesses would only be examined in-chief and then cross-examined after the framing of the charge, viz., u/s 256 Cr. P. C. That would indicate that the witnesses who have been examined before the charge can be cross-examined twice, while the accused will have only one right of cross-examination with regard to those witnesses who are produced by the prosecution after the charge has been framed. There is another ground also repelling the argument of the learned Advocate General. The direction to discharge the witnesses produced by the prosecution is contained in Section 256 and in no other earlier Section starting with Section 252. u/s 256 witnesses examined by the prosecution before the charge have to be recalled if the accused so desires, and they can be discharged only after they have been cross-examined and re-examined. Under the same Section the evidence of such of the prosecution witnesses as were not examined before the charge must be taken after those who had been examined before the charge have been cross-examined and re-examined. They can be discharged when their examination-in-chief, cross-examination and re-examination is over. The discharge order can thus be made after provisions of Section 256 have been gone through and not earlier although as a matter of grace or indulgence the witnesses might have been cross-examined before the charge. All this would show that a witness cannot be discharged u/s 252 giving rise to the corollary that cross-examination is not implicit in Section 252; otherwise the witnesses would be discharged after their statements u/s 252 are over. There is only one right of cross-examination in Summons cases and one again in the trial of most serious cases exclusively triable by the Sessions Court. I cannot agree with the learned Advocate General that in warrant cases the accused has two rights of cross-examination, one being before the charge given by Section 252. Relevant provisions of the Criminal Procedure Code referred to above do not, in my opinion, warrant the indication that in a warrant case an accused can cross-examine once before the charge and then after it also.

It was next argued that before the stage contemplated by Section 254 is reached, the accused can be discharged u/s 253. He has a right to show to the Magistrate that the evidence of the prosecution witnesses does not provide prima facie proof to frame charge and this he can only do by testing the testimony of the witnesses by cross-examination. If he has no right to cross-examine u/s 252 how can he then show that the evidence of the prosecution witnesses is worthless or incredible. The argument has the element of desirability or propriety to a large extent but no force legally. I had myself in - ''Laehhman Singh v. Crown'', 10 Patiala L. R. 86 laid down that cross-examination of a witness can be claimed as of right by an accused in a Warrant case only after the charge had been framed but before it is framed it is discretionary with the Magistrate to allow him to cross-examine and such a discretion should not ordinarily be refused to be exercised and an accused should be given an opportunity to cross-examine prosecution witnesses even before the charge. There is no statutory obligation on a Magistrate that he must allow cross-examination of the witnesses by the accused before the charge is framed.

In - Emperor Vs. C.A. Mathews, observed while discussing this aspect of the case that

the Magistrate may in his discretion allow him to do so, and probably if the accused requested would allow him to do so but the accused cannot claim as of right to cross-examine until the charge has been framed.

In - Lachmi Narain Vs. Emperor, said

as a matter of practice or discretion I think that Magistrates would be well advised to permit some cross-examination before framing a charge; otherwise, as pointed out by the learned Sessions Judge, S. 253 would practically become a dead letter in my opinion although the accused has no absolute right of cross-examination before the framing of the charge, but I think that Magistrates would generally be exercising a proper discretion if they did permit some cross-examination at least at that stage.

In -''Mahomed Hussain v. Pakhrullah Beg'' AIR 1932 Oudh 298, Kisch J. also held the same view when he said

While I am of the opinion that an opportunity should always be given to an accused, if he so desires to cross-examine immediately the prosecution witnesses who are examined before the charge is framed, I am not prepared to go so far as to hold that the law gives him an absolute right to do so, such as gives him to cross-examine the prosecution witnesses after the charge in accordance with the provisions of S. 256.

While, therefore, the desirability or propriety of permitting the accused to cross-examine the prosecution witnesses following their examination-in-chief cannot be denied, it is impossible to hold that the desirability or propriety flows from or is directly connected with the right of the accused to cross-examine the prosecution witnesses before the charge. The propriety and desirability cannot amount to the same thing as saying that the accused has a statutory right to cross-examine the witnesses immediately after they are examination-in-chief before the charge.

The learned Advocate General has also referred to Sections 286 (2) and 289 (1) to show that the examination of a witness includes his cross-examination and also his re-examination; but as discussed above, that cannot be much helpful in interpreting the language of Section 252 Cr. P. C. In my view that the accused has no absolute right to cross-examine a prosecution witness before the framing of the charge, I am fortified by the following authorities; Emperor Vs. C.A. Mathews, in which it was held that

in a warrant case until the stage provided for in S. 256 is reached the accused has no right to cross-examine and consequently the evidence of a witness given before framing of the charge is not admissible under S. 33 I. E. A.

Lachmi Narain Vs. Emperor, in which it was held that when a Magistrate has "to take all such evidence as may be produced in support of the prosecution" he has to record not only the examination-in-chief of the prosecution witnesses, but also their cross-examination and re-examination (if any) if no express provision is made for cross-examination. But when express provision for cross-examination is made, as in S. 256 or S. 208 (2) then the phrase mentioned cannot be construed as giving a separate and independent right of cross-examination.

S.C. Mitter Vs. The State, ; in which it was laid down that

in a warrant case the accused has no right to cross-examine the witness before the charge is framed." Reference in this case was also made to an unreported decision of the Calcutta High Court in Appeal No. 236 of 1949 (Cal) which contained detailed reasons for the view taken.

In G.L. Biswas and Others Vs. The State, it was held that

in a case tried under Chapter 21, an accused is given an opportunity to cross-examine the prosecution witnesses under S. 252 even though the charge may not be framed. This is not a statutory right but is done by virtue of a well established practice The reason is that an absolute right of cross-examination by the accused is expressly given only by S. 256 after the charge is framed.

The learned Advocate General except - ''Guru Din v. Emperor'', AIR 1935 Nag. 8 could not refer to any authority in which the question whether an accused had a right to cross-examine prosecution witnesses in a warrant case before the framing of the charge was directly involved. The observations of the learned Judges in all the cases referred to by him, particularly in - ''Ramyad Singh v. Emperor'', AIR 1920 Pat 149; -''Varisai Rowther v. Emperor'', AIR 1923 Mad 609 (F.B.); - ''Mahomed Rahim v. Emperor'', AIR 1935 Sind 13 (F.B.) and - ''W. H. Lackley v. Emperor'', AIR 1920 Mad 201, were in the nature of obiter dicta. In AIR 1935 Nag 8, Grille J.C. did not so much give reasons of his own but commented upon Emperor Vs. C.A. Mathews, and referred to - ''Asirbad Muchi v. Maju Muchini'', 8 Cal WN 838, Dibakanta Chatterjee Vs. Gour Gopal Mukerjee, and - In Re: Kanma Kondiah and Others, in which, as I have pointed out above, the question did not arise directly for consideration.

I will not close without adverting to the argument advanced by the learned Advocate General finally, that in this case the provisions of Section 33 Evidence Act have no bearing. His argument precisely is that the stage at which the complainant who had been examined, cross-examined and re-examined before the framing of the charge, was required to be present for cross-examination u/s 256, could not in view of the fact that the proceedings were the same and in continuation be considered to be a subsequent stage of the same proceeding. The point raised is not covered by the question before the Full Bench. It is besides the scope of that question to decide as to what would be a subsequent judicial proceeding or a later stage of the same proceeding. As a matter of fact, the words subsequent judicial proceeding'' or a ''later stage of the same judicial proceeding'' do not find place in the question. If we discuss and decide the point raised by the learned Advocate General we would be deciding it in the narrow light of the facts of this particular case which the question does not contemplate. A prior deposition of a witness in a judicial proceeding or before any person authorised by law to take it, can be admissible u/s 33, if in a subsequent judicial proceeding or later stage of the same judicial proceeding the same deponent is required to give evidence but has become unavailable. After the charge has been framed and the stage of cross-examination u/s 206 comes into existence before the same Magistrate, there can be no question of his evidence being taken again. He is called for the purposes of cross-examination which would be in continuation of the same proceeding. But as observed above, that point of law is not before us for decision, and it would be unnecessary to dilate upon it,

For the reasons given above, I would answer the question referred to the Full Bench in the negative.

PER FULL BENCH: The case will now go back to the referring Bench for decision.