Relevancy of certain evidence for proving, in subsequent proceeding (S-27 BSA)
Section 33 in The Indian Evidence Act, 1872
A plain reading of Section 33 will make it clear that evidence given by a witness in a judicial proceeding or before any person authorized to take it is admissible 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 in its evidence given in earlier judicial proceeding or earlier stage of the same judicial proceeding, but under proviso there are three prerequisites for making the said evidence admissible in subsequent proceeding or later stage of the same proceeding and they are:
(i) that the earlier proceeding was between the same parties; (ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (iii) that the questions in issue in both proceedings were substantially the same, and in the absence of any of the three prerequisites aforesaid, Section 33 of the Act of the would not be attracted.
Ref:
- V.M. Mathew vs V.S. Sharma And Others (1996 AIR 109, 1995 SCC (6) 122)
- AIR 2004 SUPREME COURT 1492, 2004 (4) SCC 236, 2004
Sec 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 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 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.
Statements Made Under Special Circumstances.
The words “adverse party in the first proceeding having the right and opportunity to cross-examine”. The question of a party having the right and opportunity to cross-examine will arise, if he is an adverse party in the first proceeding. The second proviso, which is an exception to the main part of the section, operates only if the adverse party in the first proceeding did not have the right and opportunity to cross-examine the witness examined therein. The term `adverse party’ connotes that a party which has a right and opportunity to cross examine in the first proceeding. This proviso, therefore, obviously protects the rights of the adverse party in the first proceeding and not the party who produced the witness. The party against whom the witness is produced in the previous proceeding is the adverse party and not the person who produced the witness and had the advantage of having examined the witness. (V.M. Mathew vs V.S. Sharma And Others (1996 AIR 109, 1995 SCC (6) 122)
Analysis
Section 33 of the Indian Evidence Act, 1872 highlights the circumstances under which evidence provided by a witness in one proceeding can be considered relevant in subsequent proceedings or in later stages of the same proceeding. Here’s a breakdown of the section:
Main Provision:
Evidence given by a witness in:
- A judicial proceeding, or
- Before a person legally authorized to record it,
is relevant for proving the truth of the facts stated in such evidence during:
- A subsequent judicial proceeding, or
- A later stage of the same proceeding,
if the following conditions are met:
- The witness is:
- Dead,
- Cannot be found,
- Incapable of giving evidence,
- Kept out of the way by the adverse party, or
- Unable to attend without undue delay or unreasonable expense.
- Provided that:
- The proceeding was between the same parties or their legal representatives.
- The adverse party had the right and opportunity to cross-examine the witness.
- The issues in question were substantially the same in both proceedings. The proviso envisage that the questions in issue ought to be substantially the same in the two proceedings; it is not necessary that all the questions in issue in the two proceedings should be substantially the same.
Explanation:
A criminal trial or inquiry is treated as a proceeding between the prosecutor and the accused for the purposes of this section. This ensures that evidence from such trials is admissible, provided it fulfills the aforementioned conditions.
Purpose and Application:
Section 33 is a key provision for ensuring justice when witnesses cannot be present. It balances the rights of parties with procedural practicality, especially when cross-examination opportunities have already been afforded.
It is desired to have recourse to this Section on the ground that a witness is incapable of giving evidence that fact must be proved, and proved strictly. It is an elementary right of an accused person or a litigant in a civil suit that a witness, who is to testify against him, should give his evidence before the Court trying the case which then has the opportunity of seeing the witness and observing his demeanour and can thus form a far better opinion as to his reliability than is possible from reading a statement or deposition. It is necessary that provision should be made for exceptional cases where it is impossible for the witness to be before the court, and it is only by a statutory provision that this can be achieved. But the court must be careful to see that the conditions on which the statute permits evidence given by the witness to be read are strictly proved. In a civil case a party can if he chooses waive the proof, but in a criminal case strict proof ought to be given that the witness is incapable of giving evidence. In very many of these cases the accused is not represented at this (preliminary enquiry) stage, so while he has the opportunity to cross-examine it is not often that this would be effectively done. This is another reason for exercising great care before admitting a statement.
The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross-examine the witness in the previous proceeding. Take an instance where ex-parte proceedings were taken against the defendant, he had no right and opportunity to cross-examine the witness. If the same evidence is sought to be used, he is certainly an adverse party in the previous proceeding and since he had no right and opportunity to cross-examine that witness, the same evidence cannot be used against the defendant in the subsequent proceeding. In other words, the proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross-examination in order to make it admissible in the later proceeding. (V.M. Mathew vs V.S. Sharma And Others (1996 AIR 109, 1995 SCC (6) 122)
It is, therefore, clear that a person who examined the witness should not be permitted, in the subsequent proceeding between the same parties, to raise the objection that the statement which was recorded in the previous proceeding on his behalf should not be admissible because he had no right and opportunity to cross-examine him. It would also be unfair that the person producing a witness in the previous proceeding should be able to utilise the evidence recorded in his favour in the previous proceeding as evidence in the subsequent proceeding, while the adverse party should be denied of the same right of using the same statements favourable to him which went against the party producing the witness in the previous proceeding.
In the case of V.M. Mathew vs. V.S. Sharma & Ors., AIR 1996 Supreme Court 109, in which it was laid down that in view of the second proviso, evidence of a witness in a previous proceeding would be admissible under Section 33 of the Act only if the adverse party in the first proceeding had the right and opportunity to cross-examine the witness. The Court observed thus at pages 110 and 111:-
“The adverse party referred in the proviso is the party in the previous proceeding against whom the evidence adduced therein was given against his interest. He had the right and opportunity to cross-examine the witness in the previous proceedingthe proviso lays down the acid test that statement of a particular witness should have been tested by both parties by examination and cross-examination in order to make it admissible in the later proceeding.”
27. Relevancy of certain evidence for proving, in subsequent proceeding, truth of facts therein stated. (BSA 2023)
