Provided,— not be found at the later stage
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.
A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Sometimes it may happen that a witness did appear before the court and his depositions were duly recorded in judicial proceeding where the opposite party exercised rights and opportunities to cross-examine him. However, when he died and could not be found at the later stage of the same proceeding or in any subsequent proceeding between the parties and on the same issues involved therein; the deposition given by the witness in the previous proceeding is relevant under section 33. Section 33 applies in civil suit as well as in criminal cases. It would be applicable inter alia in a case where either the witness who has been examined-in-chief is incapable of giving evidence, or is absent, or his presence cannot be detained without any amount of delay or expense which the court considers unreasonable.
Principles laid down:
The section applies to the cases in which evidence given by a witness: (i) in a judicial proceeding, or (ii) before any person who is authorized by law to take evidence, such evidence is relevant in a subsequent proceeding or at the later stage of the same proceeding. The admissibility of such statement and the subject matter do not depend on their intrinsic character but on circumstances on which they are made.
Reasons: (i) when the witness is dead or (ii) he cannot be found or (iii) he is incapable of giving evidence or (iv) he is kept out of the way by the adverse party or (v) his presence cannot be obtained without an amount of delay or expense which the court considers unreasonable.
The evidence deposited by any one of these witnesses mentioned above will be admissible subject to fulfillment of three conditions, viz.,
1. The previous proceeding was between the same parties as in the subsequent one or their representative-in-interest; Proviso l.
2. The adverse party in the previous proceeding had rights and opportunities to cross-examine; Proviso 2.
3. The question in issue were substantially the same in the previous and subsequent proceeding; Proviso 3.
An explanation appended to this section provides that a criminal trial or enquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Relevance of evidence:
The principle of admissibility of evidence deposited in the first proceeding depends on fulfillment of the above three conditions. If the conditions are not satisfied the previous deposition would be inadmissible. The application of this section is essentially a matter of discretion of the court.
“Where a statute (eg, the Evidence Act, 1872) makes provision for exceptional cases where it is impossible for the witness to be before the court, the court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved.” The precondition is this that Section 299 of Cr. PC and Section 33 of the Evidence Act must be established by the prosecution and it is only then the statements of witnesses recorded under section 299, Cr. PC before arrest of the accused can be utilized in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other conditions enumerated in the second part of Section 297(2), Cr. PC is established.
(i) In judicial proceedings. The principle is applicable in judicial proceeding and before any person authorized by law. Judicial proceeding means any proceeding where evidence is taken on oath. The proceeding must be legal proceeding. A statement not recorded in a judicial proceeding is not relevant under section 33 of the Act. Evidence given by a witness in a judicial proceeding is relevant for the purpose of proving a particular fact in later stage of the same judicial proceeding, when the witness cannot be found or is dead.
(ii) Another forum is the proceeding before any person authorized by law to take evidence. For example, evidence examined by a Sub-Registrar under the Registration Act will be admissible in subsequent suit between the same parties, because Sub-Registrar is a person authorized by law to take evidence.
The first proviso to Section 33 provides “that the proceeding was between the same parties or their representative-in-interest.” In other words “it covers not only cases of private estate and succession of title, but also cases where both the following conditions exist, viz., (i) the interest of the relevant party to the second proceeding in the subject matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding, and (ii) the interest of both in the answer to be given to the particular question in issue the first proceeding is identical.” Whether there was a party to the first proceeding who was representative-in- interest of a party to second proceeding within the above meaning must depend on the circumstances of each case. The rule also applies equally to criminal proceeding. If the witness is dead or cannot be found, the statement recorded would be admissible.
Right and opportunity to cross-examine:
According to Proviso II the evidence shall not be admitted unless it was tested by cross-examination by the opposite party at the previous proceeding. The rule is that the adverse party must have right to cross-examine the witness. Simple right is not enough. If the party had right to cross-examine, but he failed to do so, the statement may be proved in subsequent proceeding. The party must have had both the right and the opportunity of cross-examining. Where an accused had no opportunity to cross-examine the prosecution witness, statement of such witness recorded during the course of inquiry is not admissible.
Identity of issues:
The questions in issues in the two proceedings should be substantially the same. It is not necessary that all questions in the two proceedings should be the same, but substantially be the same. “It should be borne in mind that the subject matter of suits need not be identical, it is only the question in issue which is to be identical.”
According to the explanation a criminal trial or inquiry shall be deemed to be proceeding between the prosecutor and the accused within the meaning of this section. “The effect of the explanation seems to be that a deposition taken in a criminal trial may be used in a civil suit and conversely, provided that the conditions of this section are fulfilled”—FIELD.