Report No. 74

7. Reasons for the view taken.-

We may now set out the reasons in support of our view. One of the cardinal rules of the system of jurisprudence followed by us is that a witness who deposes against a party must be brought face to face with that party, so that that party may be in a position to cross-examine that witness. The safeguard is described by Bentham1 as "confrontation". The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation not for the idle purpose of gazing upon the witness or of being gazed upon by him, but for the purpose of cross- examination which cannot be had except by direct and personal putting of questions and obtaining of immediate answers.

There is also a secondary advantage to be obtained by a personal appearance of the witness. The judge is enabled to watch the demeanour of the witness. The principle underlying section 33 of the Indian Evidence Act is that when a statement has already been subjected to cross-examination and is hence admitted, it comes in because the rule is satisfied and not because an exception to the rule is allowed. The statement may have been made before the subsequent trial, but it has already been subjected to proper cross-examination. The principle underlying section 33 has been summed up by Woodroffe and Ameer Ali2 and the same roads as under:

"The rule contained in this section is an administrative expedient for doing justice between litigants in a particular situation as a rational compromise between two well-known canons of judicial administration. A presiding judge will require that a party furnish evidence of the primary grade, if it is within his power to do so. So long, therefore, as the proponent can reasonably be required to cause a witness to repeat to a tribunal his evidence regarding admissible facts given on a former occasion, the presiding Judge will insist that the witness himself be produced. In other words, primary evidence will be insisted on until a satisfactory forensic necessity for offering secondary evidence is brought to the attention of the tribunal.

At this point, a second administrative canon, yet non-fundamental comes into operation. It is the administrative duty of the court to protect the substantive right of the party to prove his contention, so far, at least, as is reasonably within his power. When the proponent's necessity for producing a secondary grade of evidence is established, the right to submit it will be recognised by the court. The general rule is that the best evidence must be given: no evidence will be received which is merely substitutionary in its nature so long as the original evidence is attainable.

Thus, depositions are in general admissible only after proof that the parties who made them cannot themselves be produced. The present section states the circumstances under which secondary evidence of oral testimony may be given. Under these circumstances, the production of primary evidence is either wholly (as if the witness is dead or cannot be found, or is incapable, or is kept away) or partially (as in the case of delay or expense), out of the party's power."

The reasons which led to the enactment of section 33 of the Indian Evidence Act, in our opinion, would hold equally good, in the one limited contingency referred to above.

1. Bentham's Rationale of Judicial Evidence, Book III, Ch. XIX, cited by Woodroffe & Ameer Ali Law of Evidence, 12th Edn., 1968, Vol. 4, p. 775.

2. Woodroffe and Amser Ali Law of Evidence, 12th Edn., 1968, Vol. 4, p. 776.