Report No. 185

Section 33

We accept generally the recommendation in para 12.215 of the 69th Report but we have changed the format of the proposed amendments.

We, therefore, recommend that section 33 be revised as follows:

"33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witnes.-

(a) in a previous judicial proceeding, or

(b) in an earlier stage of the same judicial proceeding, or

(c) in any proceeding before any person authorized by law to take evidence, is relevant in a subsequent judicial proceeding before a court, for the purpose of proving 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-

(i) that the subsequent proceeding before the Court is between the same parties or their representatives in interest;

(ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine;

(iii) that the questions in issue are substantially the same in the first as in the subsequent proceeding.

Explanation.- A criminal trial or inquiry shall in cases ,

(a) where the criminal proceedings are instituted by a private person, be deemed to be a proceeding between that person and the accused within the meaning of this section, if that person is permitted by the Court to conduct the prosecution under section 302 of the Code of Criminal Procedure, 1973; and

(b) other than those referred to in clause (a), be deemed to be a proceeding between the State and the accused."