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Report No. 185

Section 33

Section 33 deals with 'Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated: It reads as follows:

"Section 33: Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.- Evidence given by a witness in a judicial proceeding, or before any person authorized 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 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:

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.

Explanation.- A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."

The evidence contemplated by this section is evidence given by a witness in an earlier judicial proceeding or before any person authorized by law to take evidence. The section states that such evidence is relevant in a subsequent proceeding for the purpose of proving the truth of the facts which it states when

(a) the witness is dead, or

(b) the witness cannot be found, or

(c) the witness is incapable of giving evidence, or

(d) witness is kept out of the way by adverse party, or

(e) witness's presence cannot be obtained without any amount of delay or expense which, under the circumstance of the case, the Court considers unreasonable.

This is subject to three conditions:

(1) that the proceeding (i.e. earlier proceeding) was between the same parties or their representatives in interest;

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

(3) that the questions in issue were substantially the same in the first as in the second proceeding.

The section has been applied in civil as well as criminal cases. We shall refer to a few such cases before we discuss the recommendations made in the 69th Report.

The old Criminal Procedure Code, 1898, contained a committal procedure, where a witness was examined at the committal stage before a Magistrate, and could not be cross examined there, then the evidence given by the witness in the Committal Court could not be used against the accused at the Sessions trial. If before a Magistrate, there was opportunity to cross examine and a defence counsel did not choose to cross examine a witness, the evidence in the committal proceeding could be used in the later proceedings and the defence, which did not avail of its right to cross examine before the Magistrate, would not be able to complain.

The question in issue in the two criminal proceedings need not be identical but it is sufficient if they are substantially the same. In re: Rama Reddi (1881) ILR 3 Mad 48, it was held:

"Although the Act, in using the word 'questions' in the plural, seems to imply that it is essential that all the questions shall be same in both proceedings to render the evidence admissible that is not the intention of the law"

In that case, R charged A with breach of trust and S gave evidence for R while A was examined as defence witness. A was acquitted. Later A prosecuted R for making a false charge against him and R's witness S for perjury. In this latter prosecution, the evidence given by A's defence witnesses earlier was sought to be given because the witnesses had died. It was held that so far as the said prior statements of witnesses were concerned, they were admissible against R because all conditions of Section 33 were satisfied but not against R, who was only a witness in the earlier case.

The Privy Council held in Bal Gangadhar Tilak v. Shriniwas Pandit : AIR 1915 PC 7 that in the absence of proof that conditions stated in Section 33 were satisfied, the evidence given an earlier civil proceedings could not be imported into a later criminal case.

By consent, the conditions can be waived in civil cases but not in criminal cases (Kottam v. Umar, ILR 46 Mad 117).

The previous deposition must have been recorded in the manner laid down in sections 263, 264, 27.- 84, 291, 2991 Cr.P.C. or under 0.18 R. 4- 17A of the CPC. Otherwise, they cannot be used under Section 33.

In a case where three prisoners were indicted for felony and a witness for the prosecution was proved to be absent through the inducement of one of them, the Court held that his deposition might be read in evidence as against the man who had kept him away but could not be received against the two others (R v. Scaife (1851) 20 L.J.M.C 229: Tay Section 472 fn).

In civil cases, Section 33 has been widely applied. Evidence of a witness examined in an inquiry by the sub-registrar under Section 41(2) of the Registration Act, 1908 as to the genuineness of a will is admissible in a subsequent suit between the same parties raising an issue as to the genuineness of the will, if the witnesses were dead and the adverse party at the inquiry under Section 41 had the opportunity to cross-examine them.

We shall now proceed to refer to certain important aspects arising under Section 33. The first of these relates to the first proviso which reads:

"provided that the proceeding was between the same parties or their representatives"

A plain reading of the proviso leads to the conclusion that the parties (or their representatives) to the earlier proceeding in which the deposition was given by a witness, must have been the same.

The question has arisen with regard to the first proviso to Section 33, whether the parties to the latter proceeding should be parties or representatives of the parties to the earlier proceeding,- as is the position under various Indian statute.- or whether the legislature deliberately required parties in the first proceeding to be parties or legal representatives of the latter proceeding. In the law in England, corresponding to Section 33 of our Act, the requirement is the other wa.- the parties to the latter proceeding must be parties or representatives of parties to the first proceeding.

The Privy Council in Krishnayya v. Venkata Kumara AIR 1933 PC 202 felt that the section did not invert the normal principle of representation but that perhaps it was deliberate having regard to the representative doctrines of Hindu joint family. The Privy Council said:

"Their Lordships, however, are not disposed to consider this inversion to be accidental. Nothing would have been easier, had it been desired so to do, than to follow the English rule, or to require that the party to the first proceeding should be privy in estate with or the predecessor in title of the party to the second proceeding. Instead of using such well-known terms a much more elastic phrase is employed, and one which is neither technical nor a term of articles The legislative authority was, it must be remembered, dealing with a country in which (amongst other institutions) the Hindu joint family involved representation of interest of a kind and degree and in circumstances unfamiliar to English law. In view of this fact, their Lordships cannot surmise that the omission of strict English legal terminology and the employment of the less restricted phrase "representative in interest" was deliberate and intentional."

The above view of the Privy Council, in our opinion, is open to criticism. Sri Vepa P. Sarathi (Evidence, 2002, 5th Ed., p. 155) says as follows:

"This elaborate interpretation became necessary on the assumption that the requirements in the Act are an inversion of the requirements of the English law, where the parties to the second proceeding must be the same or legally represent the parties to the first proceeding. It is submitted that in view of the identical phraseology used by Sir James Stephen, in Article 33 of his 'Digest of the Law of Evidence', which refers to the English law on the subject, the interpretation of Section 33 should have been that the 'inversion was accidental'."

The Privy Council did not obviously notice that in Sir James Stephen's Digest there was no deviation from the English law or rather the very common concept of parties in a latter proceeding being parties or representatives of parties to an earlier proceeding. In fact, if parties to an earlier proceeding are to be representatives of parties to a latter proceeding,- having regard to the limited span of human lif.- the principle of the section gets limited to a few cases where in the first proceeding, younger people are involved who are representatives of (living) older people who are parties to the latter proceeding. The reference to the principles of representation in Hindu law by the Privy Council also appears to be inappropriate.

Are there situations in Hindu law where parties in an earlier litigation could be claiming through parties to a latter litigation? The concept of a Joint Hindu family Manager, however peculiar to Hindu law, does not give rise to a situation where parties to an earlier litigation could be claiming through a manager who is party to a latter litigation.

Phipson (15th Ed., 1999 para 39.13) dealing with 'Deposition in Fomer Trials) states:

"At common law, depositions and oral testimony given by a witness were admissible in a civil case Wright v. Doe-d Tatham (1834)1 Ad & El (3) and are still in criminal proceedings, R v. Hall (P.B.) 1973 Q.B. 496, in a subsequent (or in a later stage of the same) trial in proof of the facts stated, provided (1) that the proceedings are between the same parties or their privies; (2) that the same issues are involved; (3) that the party against whom, or whose privy, the evidence is tendered had on the former occasion a full opportunity of cross-examination; and (4) that the witness is incapable of being called at the second trial".

The above 'inversion' in Section 33 has created several practical problems and the Courts had to stretch the meaning of the word "representatives-ininterest".

It has been held by the Patna High Court that the vague expression 'representatives in interest' must at least include 'privies' in estate. Partners and joint contractors are each others' agents for the purpose of making admissions against each other in relation to partnership transactions or joint contracts and must be regarded as 'privies in estate' (Chandreswar v. Bisheswar AIR 1927 Pat 61). The Madras High Court has held that the word 'representatives-in-interest' is not for all purposes synonymous with the expression "the persons claiming under" as in Section 11 CPC (Ramakrishna v. Tirunarayana AIR 1932 Mad. 198.

In the light of the fact that Sir James Stephens Digest refers to the correct principle by requiring, as under the English law, the party to the latter proceeding to be party or representative in interest of the party in the prior proceeding, we are of the view that section must be amended in accordance of the Digest of Sir James Stephen. In fact, that appears to be consistent with similar situations e.g.- see Section 21, 92, 99, 115 of the Evidence Act.

Now, if we read Section 33 again, it uses the words 'Evidence given by a witness in a judicial proceeding or before any authority authorized by law to make it, is relevant for the purpose of proving in a subsequent judicial proceeding or in a later stage of the same judicial proceeding'- and the first clause in the proviso uses the word "proceeding was between the same parties or their representatives in interest" while the third clause of the proviso uses the words "that the questions in issue were substantially the same in first as in the second proceeding". It will be seen that the main clause uses the word 'subsequent proceeding' while the third clause in the proviso uses the words 'first' and 'second' proceeding. In the first clause of the proviso, the word 'proceeding' is used without any qualification.

In the 69th Report, in para 12.204, after referring to the Privy Council case, it was stated that in the first clause of the proviso, the word 'first' be added before the word 'proceeding'. Para 12.205 of the report said:

"It may be noted that the proviso to Section 33 inverts the requirement of English law, which requires that the parties to the second proceeding should legally represent the parties to the first proceeding or by their privies in estate. As observed by the Privy Council, this inversion is not accidental.

Instead of saying that the parties to the second proceeding should represent-in-interest the parties to the first proceeding, the proviso employs different language.

[12.206]. As the departure from the English law has been held to be deliberate by the Privy Council, the language of the provision should be altered for bringing into line with English rule, on this point."

Having said this, in para 12.215, in the draft prepared, the Report stated, so far as the first clause in proviso, is concerned as follows:

"(i) that the first proceeding was between the same parties or their representatives in interest."

Whereas, if the English law was to be restored, the first clause in the proviso should read:-

"provided that the subsequent proceeding was between the same parties or their representatives in interest."

Obviously, the draft of the section as proposed is contrary to the recommendations and in the draft section, the word 'first' has to be replaced by the word 'subsequent'.

In the 69th Report, a few other formal changes were proposed, the words "in a judicial proceeding" were brought to the beginning of the section and the word 'before a court' were added thereafter and after the words 'evidence given' the words 'previous' added. The words or "in an earlier stage" were added in the beginning and for the words 'subsequent' judicial proceeding or a later stage of the same judicial proceeding- the words "in a judicial proceeding' are substituted. Before the word 'before any person authorized by law', the words 'any proceeding' are added. These are all formal changes in the section and we agree that they make the section more precise and can remain certain and we accept them.

We then come to the Explanation. It says "A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the section". The scope of the explanation is this: Suppose a man is run over by a car and his leg is amputated. He complains (i.e. by way of private complaint) against the driver who is prosecuted by the State for an offence under the Motor Vehicles Act or Penal Code. Later, he files a suit against the driver for damages.

Some of his witnesses who appeared in the criminal court may be dead by the time the civil case comes up for trial. If the evidence given in the criminal case is sought to be used in the civil case, it may be objected to on the ground that the parties are not the same, as the parties in the criminal case are the State and the driver and the parties in the civil case are the victim and the driver. The Explanation has been put in to get over this argument and make the evidence in the criminal case relevant evidence in the civil case. (see Vepa Sarathi, 5th Ed., 2002, pp 158-159)

In the 69th Report, after an elaborate discussion, the Commission wanted that the Explanation must be split up into two parts, one dealing with a criminal case based on a private complaint and one where it is, to start with, is by the State. The Commission recommended (para 12.215) two clauses in the Explanation as follows:

"Explanation: A criminal trial or inquiry shall,

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

(b) in other cases, be deemed to be a proceeding between the State and the accused."

The above discussion covers the various aspects dealt within the 69th Report.

So far as the second proviso is concerned, it says: "provided that the adverse party in the first proceeding had the right and opportunity to crossexamine."

As regards this proviso, the Privy Council stated that the adverse party must have had both the right and the opportunity to cross-examine (Dal Bahadur v. Bijoy: AIR 1930 PC 79). This was followed in Mulkraj v. Delhi Admn. AIR 1974 SC 1723. But in some cases, it was held that if opportunity was there it was sufficient and it is not necessary he should have actually cross-examined (Sundare v. Gopala AIR 1934 Mad 100). This latter view is not accepted by the Supreme Court in V.M. Mathew v. V.S. Sharma: 1995(6) SCC 122 and the view of the Privy Council was reiterated.

In the above Supreme Court case, the Court said "that in exparte proceedings against a defendant, he has no right and opportunity to cross-238 examine the witness". However, since he has no right and opportunity to cross-examine the witness, "the same evidence cannot be used against the defendant in a subsequent proceeding. Thereby, the proviso seeks to protect the rights of those against whom the previous proceeding might have gone exparte who had no right and opportunity to cross-examine the witness".

We do not want to go into the case of evidence adduced in exparte proceedings in view of the decision of the Apex Court.

In the result, 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."



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