A.M. Bhattacharjee, J.
1. The prosecution, having failed to tender one of the witnesses for cross-examination after charge in spite of repeated opportunities, applied to the Court to summon and examine three more witnesses to prove that the whereabouts of the first-mentioned witness were no longer traceable, so that his deposition before charge could be admitted in evidence under Section 33, Indian Evidence Act, 1872. In Karmadhan Lama v. State of Sikkim 1979 Cri LJ 610 I have held that in a warrant-case (not instituted on a police report) an accused has an absolute right to cross-examine a prosecution witness before charge and therefore, the statement of a witness before charge can be treated as evidence, even though the witness is not and cannot be recalled for cross-examination after charge, if before charge the accused had the opportunity to cross-examine him.
2. In this case, the witness concerned was in fact cross-examined by the accused before charge and therefore, according to the ratio of Karmadhan Lama's case (supra), the accused had both the right and the opportunity to cross-examine within the meaning of the proviso to Section 33 of the Evidence Act and the prosecution would, therefore, if Section 33 applies, be entitled to rely on his deposition 'for the purpose of proving the truth of the facts' stated therein if the prosecution could prove that, as alleged by it, the whereabouts of the witness concerned could no longer be ascertained or traced in spite of reasonable endeavours. And that is precisely what the prosecution in this case tried to do by requesting the Court through a written application to examine three more witnesses, before the accused was called upon to make his statements under Section 342, Code of Criminal Procedure and that is what the learned Sessions Judge has refused to do by his impugned order. If the learned Judge had good reasons to do so. the revision shall fail: but if the reasons are not good enough, the revision should succeed. It may be noted that under the provisions of the Sikkim Criminal Procedure Act, 1976, the Code of Criminal Procedure, 1898, is still the law relating to Criminal Procedure in Sikkim with some modifications, one being that the trial before the Court of Session is also regulated by and according to the provisions for trial in warrant-cases as contained in Chapter XXI of the Code.
3. Now the decision in Karmadhan Lama's (case) 1979 Cri LJ 610 (Sikkim) (supra) being a single-Judge decision is not obviously binding on us sitting here in Division and I have, therefore, taken this opportunity to consider afresh, with usual guidance from my Lord the Chief Justice, as to whether the said decision requires reconsideration and I have thought it desirable and necessary to do so in view of the importance of the question involved and the sharp cleavage of opinion among the different High Courts on the point, not yet authoritatively settled by any decision of the Supreme Court. The decision in Karmadhan Lama's case (supra) being a decision of mine, I will be in a much more comfortable position to overcome and, if necessary, to overrule the same, while it may be somewhat embarrassing for my Lord to declare, while sitting with me, that I have gone wrong. As Lord Dennine pointed out (see 'The Discipline of Law' -- Page 64), 'it is always easier to overcome a decision when you have been a party to it yourself. You can correct your own mistakes.'
4. I have, therefore, tried to examine all the reported decisions of the different High Courts and the Courts of former Judicial Commissioners that I have been able to lay my hands on, but, and this I say with all humility, I have found no reason whatsoever to depart from my view in Karmadhan Lama's case 1979 Cri LJ 610 (Sikkim) (supra) that an accused has and cannot but have an absolute right to cross-examine a prosecution witness before any charge is framed when such a witness is examined under Section 252, Code of Criminal Procedure.
5. The ratio of the decisions holding that the accused has no such right appears to be that since right to cross-examine the prosecution witnesses has been expressly conferred by Section 256 only after a charge has been framed and before the accused enters on his defence and also by Section 257 after the accused enters on his defence, any such right, not having been expressly granted at any earlier stage, must be deemed to have been denied. These decisions, if I may say with respect have given effect, though without referring expressly, to the principle enshrined in the maxims -- 'Expressio unius est exclusio alterius' and 'Expressum facit cessare taciturn' -- that is, express mention of one excludes the other and makes the other cease to exist.
It is no doubt true that the right to cross-examine has been expressly conferred on the accused under Section 256 and Section 257 of the Code of Criminal Procedure only after a charge has been framed. Section 208(2) may also be referred to as another instance of an express grant of a right in favour of the accused to cross-examine the prosecution witnesses when they are examined in commitment proceedings before a charge is framed and Section 290 is yet another instance where cross-examination of defence witnesses has been expressly referred to. And from these, it has been held in some of those decisions that a right to cross-examine in any other case, that is, in any case where such a right has not been expressly conferred, must be deemed to be excluded though, they maintain, the Courts may and should allow the accused or the opposite party opportunity to cross-examine the witnesses examined by the adversary in such cases also.
Now, as I have pointed out in Karmadhan Lama's case 1979 Cri LJ 610 (Sikkim) (supra), if a right to cross-examine is to exist only when there are provisions expressly conferring such right and, therefore, must cease to exist in the absence of such express provisions, then an accused cannot have any right to cross-examine any prosecution witness at any stage of the trial in a summons case under Chapter XX or in sessions trial under Chapter XXII, where no express provision has been made for cross-examination of the prosecution witnesses by the accused. And if this is pushed further to its apparent logical conclusion, it would have to be held that while the accused cannot, as a matter of right, cross-examine the prosecution witnesses in a sessions trial at any stage, there being no express provisions conferring such right in Section 286 or in any other Section, the prosecution can nevertheless cross-examine defence witnesses as a matter of right, as such a right has been expressly mentioned in Section 290. It is, however, relieving to find that none of the decisions has gone so far though their ratio has all the potentiality to go to that extreme length.
6. The ratio of the decisions holding that the accused has and cannot but have an absolute right to cross-examine prosecution witnesses before charge when those witnesses are examined under Section 252, proceeds on the basis that a right to cross-examine a witness is an integral part of the examination of a witness so much so that whenever a witness is examined, any failure to provide opportunity to the opposite party to exercise such right of cross-examination will render the examination incomplete and ineffective unless such party waives or abandons such right except, obviously, in those cases where express provisions of law legalise examination of witnesses in the absence of the opposite party, as for example, in civil cases decided ex parte or in criminal cases under Section 512 where the accused have absconded or under Section 200 or Section 202 where witnesses are examined before issuance of process against the accused.
In Karmadhan Lama's case 1979 Cri LJ 610 (Sikkim) (supra), though I have held that the accused has an absolute and indefeasible right to cross-examine any prosecution witness before charge, I thought that such a right must inevitably and invariably follow and flow from the 'elementary principle of judicial procedure', as held by Prinsep and Ameer Ali, JJ., in Queen-Empress v. Sagal Samba Sajao (1894) ILR 21 Cal 642 at p, 663 and I thought further, as held by Cuming and Lord-Williams, JJ. in Emperor v. C. A. Mathews AIR 1929 Cal 822 at p. 823 : 31 Cri LJ 809, that even though Section 138, Evidence Act confers a right to cross-examine after a witness is examined-in-chief, that Section, by itself, does not conclude the point that such cross-examination or the opportunity to do so must immediately follow the examination-in-chief and cannot be deferred to after framing of the charge. It may be that the provisions of the Indian Evidence Act, 1872, or, for the matter of that, any other statutory law of evidence, not being formally applicable in Sikkim, my anxiety to find and found such a right apart from and independently of any such statutory provision led me to trace the right from the provisions of Section 252 itself which enjoins the Magistrate to 'take evidence.'
When under Section 353 of the Code, barring few exceptions not relevant for our present purpose, evidence must be recorded in the presence of the accused or of his pleader, when his personal attendance is dispensed with and his right to defend himself throughout the trial includes also the right to be defended by a legal practitioner under Section 340 of the Code, now sanctified as a fundamental right under the Constitution by Article 22 thereof to hold that the accused has no right to cross-examine a witness at any particular state of the trial would be to deprive him of his right to defend himself at that stage, unless we can lay hands upon any statutory provision making the accused and/or his pleader to suffer from judicial dumbness, deafness and also blindness. But while I still maintain my view, expressed in Karmadhan Lama's case (supra), that the accused must and cannot but have an absolute right to cross-examine a prosecution witness before charge as a matter of elementary principle of natural justice and judicial procedure, even without any express statutory provision to that effect, I now feel that I should have also held further that Section 138. Evidence Act really embodies and enshrines such principle and procedure and does not merely, provide for the order of examination of witnesses.
Such a construction will also go to show the fallacy of the contention that the right to cross-examination having1 been 'expressum facit' in Section 256 or Section 257 only after a charge is framed, must be deemed to be excluded at any earlier stage when evidence is taken under Section 252, because at that stage also, a right to cross-examine is 'expressum facit' under the general provisions of Section 138, Evidence Act. But as no such or further right to cross-examine would have been available under those provisions after a charge was framed and as the Legislature thought it necessary and expedient to grant the accused further right of cross-examination after he was charged and thus know precisely what was the case and the evidence against him, such rights were expressly conferred by Section 256 and Section 257, which would not have been available but for such express conferment.
7. I was really feeling a good deal of difficulty to understand as to why it was necessary to expressly grant a right to cross-examine in some of the provisions in the Code of Criminal Procedure, e. g;, Section 208(2), if, as I have held, such a right was available as a matter of elementary principle or under the provisions of Section 138, Evidence Act embodying such principle, until I had the opportunity of going through the Division Bench decision of the Calcutta High Court of Prinsep and Ameer, Ali, JJ., in Queen-Empress v. Sagal Samba Saiao (1894) ILR 21 Cal 642 (supra) where the reasons for this apparent incongruity or redundancy were explained with reference to the earlier Codes of 1861, 1872 and 1882. I also find Gurnam Singh, J., to have explained the aforesaid apparent anomaly in the same way in the Full Bench decision of the former Pepsu High Court in State v. Baldev Kishan AIR 1952 Pepsu 178 : 1953 Cri LJ 51, after referring to and relying on the aforesaid Calcutta decision, I will have to refer hereinafter to this Pepsu decision in more details which, if I may say so with respect, is one of the most thoughtful and thought-provoking-judgments on the point falling for our consideration in this case and for the present I will quote the following from the judgment of Gurnam Singh, J., (at P. 181):
Section 194 of the Code of 1861 and Section 191 of the Code of 1872 expressly gave the right to the accused to cross-examine the prosecution witnesses before commitment. This provision was omitted from the. Code of 1882 by the Legislature obviously on the ground that the right to cross-examination was inherent in the accused as provided in Section 138 of the Evidence Act of 1872. This omission created doubt inasmuch as it was considered that the Legislature by this omission had intended to deprive an accused of such a right before commitment.... It was for this reason that the Legislature in order to remove all doubts re-enacted an express provision for cross-examination of the prosecution witnesses in Sub-section (2) of Section 208 of the Code of 1898. Otherwise there is no explanation for this provision. I still maintain that even in the absence of this express provision for cross-examination, the accused would still be entitled to the right of cross-examination.
8. In other words, what was omitted in the Code of 1882 as redundancy, was again inserted in the Code of 1898 to clear the confusion resulting from the omission and as abundanti cautela, but the right existed in spite of the omission and exists even independently of the subsequent re-insertion.
9. Having got this opportunity to reconsider and review my earlier decision in Karmadhan Lama's case 1979 Cri LJ 610 (Sikkim) (supra), I would have very much liked to refer to and consider, as far as possible, all the important decisions of the different High Courts on the point; but I have refrained from doing so, firstly, because reference to all those innumerable decisions would make this judgment unwieldily lengthy and, secondly, because we have now been reminded by Hon'ble Krishna Iyer, J. (in K. Kalpana Saraswathi v. P. S. S. Somasundaram Chettiar : 2SCR293 that 'justicing, including judgment-writing, must practise the art of brevity.' I would, therefore, only say that on a review and reconsideration of the law on the point, legislative as well as judicial, I still feel inclined to hold that an accused has and cannot but have an absolute right to cross-examine a prosecution witness before any charge is framed in a warrant case not instituted on a police report and the express rights granted to the accused to cross-examine after charge under Section 256 and Section 257 are only further rights granted to him and I will conclude this aspect after quoting, with all humility, the characteristic saying of Sir George Jessel that 'I may be wrong and sometimes am, but I am not in doubt.'
10. But the question as to whether in a warrant-case not instituted on a police-report, evidence of a prosecution witness already on record before charge, whom the accused had the right and opportunity to cross-examine, at all requires the aid of the provisions of Section 33, Evidence Act, in order to maintain its judicial existence on the record, if such a witness is not or cannot be produced for cross-examination after charge, may not be beyond doubt. According to Section 33, evidence given by a witness in a judicial proceeding is relevant for the purpose of providing, 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 no longer available due to death or other reasons specified therein provided the conditions laid down in the three clauses of the proviso thereto, reproduced here in below, are satisfied, namely,:
that the proceeding was between the same parties or their representative-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.
(Underlining for emphasis).
11. Now, I do not think that the trial in a warrant case (not instituted on a police report), can in any way be dichotomized so that the proceeding up to the framing of charge can be labelled as the 'first proceeding' and the proceeding thereafter as the 'second proceeding' within the meaning of the second and the third clauses of the proviso to Section 33, as quoted above. I have, therefore, no doubt that the Proviso to Section 33 can have no manner of application in considering the question as to whether the evidence of a witness given before charge in a warrant case can be taken into consideration after a charge is framed without producing that person any further as a witness. I am not aware of any reported decision on this point, but would venture to think so even if I am treading on virgin soil.
12. But would the body of the Section, that is, Section 33 sans the proviso, apply and govern the matter? The Section ex facie covers the question of relevancy of evidence given in one judicial proceeding not only in 'a subsequent judicial proceeding', but also 'in a later stage of the same proceeding' and it may plausibly be contended that the post-charge stage in a warrant case is 'a later stage of the same judicial proceeding', even if or even though not a 'subsequent judicial proceeding' or a 'second proceeding.' A number of authorities, which have held that an accused has a right to cross-examine a prosecution witness before charge in a warrant case, have further held that after the accused in such a case had also the opportunity of cross-examining before charge, the evidence of such a witness, if he is no longer available after charge due to death or other reasons specified in Section 33, is relevant and admissible under that Section.
But there are also authorities which have held that if the accused, who has a right to cross-examine a prosecution witness before charge, is also given due opportunity to do so. the evidence of such witness, if otherwise relevant remains on record as legal evidence, even if such witness is not produced for further cross-examination after charge and no further question of its relevancy or admissibility can any further arise to attract or to require the aid of the provisions of Section 33 or any other Section and the only question that then arises for consideration is as to what weight can or should be attached to such evidence in view of the fact that the accused has been deprived of his legal rights to cross-examine him further under Section 256 and Section 257. In this case, it is not necessary to express any final opinion on this question because, as I will presently show, the case can be satisfactorily disposed of without any final determination of this question. But in view of the importance of the question and the difference of opinion among the different High Courts, I would only like to state that, if it was necessary, I would have, with respect, expressed my preference for the later view and I would like to state briefly the reasons therefor.
13. Under Section 5, Evidence Act, evidence 'may be given' of every fact in issue and of other facts declared to be relevant under the said Act. The question of relevancy of evidence generally and ordinarily arises at the time when such evidence is 'gjven' and is admitted under Section 136, Evidence Act. It is no doubt true that even if evidence is given and admitted under a bona fide impression as to its relevancy, it has got to be excluded from consideration if at any latter stage such impression is shown or found to be wrong because, as provided in Section 165, the 'judgment must be based upon facts declared by this (Evidence) Act to be relevant and duly proved', and it is, therefore, difficult to agree with Gurnam Singh, J., when his Lordship said in State v. Baldev Kishan AIR 1952 Pepsu 178 at p. 184 : 1953 Cri LJ 51 (FB), that 'once his deposition is admitted on record as admissible evidence, no question of its admissibility or relevancy arises at any subsequent stage.'
But once a witness is examined in a warrant case before charge and his evidence is admitted and the accused, having a right to cross-examine, is also given an opportunity to do so, the evidence, having thus satisfied the requirements of Section 138, Evidence Act, becomes full, complete and legally admissible and there is no provision in the Evidence Act, or, for the matter of that, in the Code of Criminal Procedure or any other law, which will render such evidence inadmissible on the ground that the witness has not been produced for further cross-examination by the accused after charge, even though the accused has a legal right to such further cross-examination. The evidence in such a case having already been admitted on record, shall, if otherwise relevant, remain on record for all its worth and need not invoke and satisfy the provisions of Section 33 for its continued judicial existence or efficacy, It may be noted that the accused has a right to cross-examine a prosecution witness not only under Section 256 after a charge is framed, but he has also a further right to cross-examine such witness under Section 257 after he enters on his defence, if 'the Magistrate is satisfied that it is necessary for the purposes of justice.'
But even if the Magistrate is so satisfied but such a witness is not made available for such further cross-examination under Section 257, the ad-missibility of his evidence already on record before and after charge cannot be questioned on that ground and is in no way dependent on the provisions of Section 33 of the Evidence Act though such fact may and very often would affect the weight of such evidence. And if that is so, the same result should follow when a witness examined before charge has not been or cannot be produced for cross-examination after charge under Section 256 and, therefore, his evidence before charge, if otherwise, relevant, would continue to remain admissible and relevant as before without the aid of the provisions of Section 33, though as already pointed out, such absence of cross-examination may very much affect its reliability.
14. This appears to be the view of the Madras High Court in Maharaja of Kolhapur v. S. Sundaram AIR 1925 Mad 497 at p. 537, of the Lahore High Court in Mangal Sen v. Emperor AIR 1929 Lah 840 (2) at p. 842, of the Patna High Court in Mst. Horil Kuer v. Rajab Ali AIR 1936 Pat 34 at p. 35 and in Srikishun Jhunjhunwalla v. Emperor AIR 1946 Pat 384 at p. 385 : 47 Cri LJ 614 and of the Allahabad High Court in Ahmad Ali v. Joti Prasad AIR 1944 All 188 (2) at pp. 190-191. And all these decisions have been referred to with approval and, if I may say so with respect, explained and expounded with exceptional clarity by Gurnam Singh, J., in the Full Bench case of the Pepsu High Court in State v. Baldev Kishan AIR 1952 Pepsu 178 at p. 186 : 1953 Cri LJ 51, where the learned Judge has further pointed out (at p. 184) that the words 'in a later stage of the same judicial proceeding' in Section 33, Evidence Act 'can hardly apply to the proceedings subsequent to the framing of a charge in a warrant case' and that the cases contemplated by the said words are:
When the appellate Court on appeal against conviction by the accused orders retrial and if during such trial a witness who had given evidence in the previous trial is not available and the conditions laid down in Section 33 are fulfilled, his statement thus made in the previous trial becomes relevant for the purposes of a later trial. Again take a case of proceedings under Section 350 of the Criminal Procedure Code. Thus when de novo proceedings were started by a succeeding Magistrate and a witness is not available to depose in Court, his previous statement is permitted to be given in evidence under this Section.
15. I agree with the learned Judge that a retrial ordered by the appellate Court or a de novo trial under Section 350, Code of Criminal Procedure, 1898 (as it stood prior to its amendment in 1955), is not a new or a second proceeding but a 'later stage in the same judicial proceeding' and as the evidence of witnesses recorded prior to such retrial or de novo trial ceases to be legal evidence for the purpose of such retrial or de novo trial, the same can be re-admitted in evidence only when it satisfies the provisions of Section 33. I am also in clined to agree that the question of the applicability of Section 33. Evidence Act, in a later stage of the same proceeding can and would arise only when the former evidence is again required or sought to be given and admitted in a later stage, as in the cases of retrials or de novo trials as noted above, but not in the post-charge stage in a warrant case, where the question of again giving and admitting the evidence already on record before charge cannot obviously arise.
16. Be that as it may, I would not, as I need not, pursue the matter any further to the point of any final expression of opinion, as I am satisfied that the learned Sessions Judge ought to have allowed the prayer of the prosecution to examine the proposed witnesses to prove that the whereabouts of the witness concerned were no longer traceable, as such evidence would be essential to the just decision of the case within the meaning of Section 540, Code of Criminal Procedure, whether or not Section 33, Evidence Act would apply to this case. For, if Section 33 applies, then the evidence of the witness concerned, which in my view is essential for the proper unfolding of the prosecution case, would be relevant only if it is proved that the witness cannot be found or be made available for any of the reasons specified in the body of that Section 33.
And if Section 33 does not apply and the evidence of the witness concerned before charge would remain on record as legal evidence without the aid of Section 33, the prayer of the prosecution to examine further witnesses to Drove that the witness concerned can no longer be found to be made available for further cross-examination, should still be allowed so that the Court can be satisfied that the non-availability of this witness for further cross-examination as provided under the law is or is not the result of any deliberate manoeuvre on the part of the prosecution which would go a long way to assist the Court in deciding as to whether or not any adverse inference is to be drawn against the prosecution or as to whether any weight and if so what weight, is to be attached to the evidence of this witness concerned.
17. It appears from the impugned order dated 25-3-1980 that what weighed with the learned Judge and led him to reject the prayer of the prosecution was the fact that the prosecution was allowed and 'had ample opportunity' to produce the witness concerned and the 'prosecution evidence was closed' on 11th March 1980, when the next date was fixed for 24th Mar. 1980 subsequently adjourned to 25th March, 1980, for the examination of the accused under Section 342, Criminal Procedure Code, and as such, in the opinion of the learned Judge, the prosecution could not be allowed any further opportunity to examine witnesses. It is good that the learned Judge is, as he should be, alive to the principle that expedition should be of prime importance in a criminal trial. But what the learned Judge failed to notice was that the prosecution, who might not have been allowed so 'ample opportunity' as the learned Judge himself allowed it before that date, was not, on that date, praying for any further opportunity to produce the witness concerned for cross-examination, but was only praying for the examination of some other witnesses to prove that the witness concerned could not be produced as he could no longer be traced.
In and under those circumstances, I have no doubt that the learned Judge, his displeasure at the slow progress of the prosecution notwithstanding, should have only considered as to whether the evidence of the witness concerned recorded before the charge was essential for the proper unfolding of the prosecution case and if he found it to be so, he could have no reasons for not holding that the proposed evidence as to the untraceability and consequent non-availability of the said witness after charge was also essential within the meaning of Section 540, Code of Criminal Procedure. And once he held, as he ought to have, that the evidence of the proposed witnesses was thus essential, he ought to have immediately realised the peremptory obligation cast upon him by the later part of the said Section 540 'to summon and examine' the proposed witnesses in order to ascertain whether the witness concerned was no longer traceable and available.
I have gone through the evidence of the witness concerned before charge, not to assess its weight, but to ascertain its nature and I am satisfied that the evidence formed essential part of the prosecution case, though I am not, as I must not be, expressing any opinion as to its quality, weight or strength. The evidence of the proposed witnesses, therefore, to prove, if they could, the untraceability or non-availability of the witness concerned would accordingly be essential and the learned Judge went entirely wrong in rejecting the prayer of the prosecution inviting him to do something which he was under the statutory obligation to do under Section 540, Code of Criminal Procedure, which mandates every Court to 'summon and examine or re-call and re-examine any such witness, if his evidence appears to it essential to the just decision of the case'.
18. The provisions of Section 540 of the Code of Criminal Procedure, should have been clear enough without any judicial gloss thereon. But the decisions of the different High Courts, speaking in different voices, created some impressions which were difficult to reconcile. However, the Supreme Court decision in Jamatraj Kewalji Govani v. State of Maharashtra : 1968CriLJ231 , now the leading decision on this section, referred to with approval in the later decision in Amar Chand v. Shanti Bose : 1973CriLJ577 , has not only settled the law on the point but has cleared our minds of some of those impressions which must now. in view of the Supreme Court decision, be regarded to be wrong. It was thought that this power under Section 540. Criminal Procedure Code was not to be exercised to the disadvantage of the accused and 'that the practice should be limited to a case where the matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner'.
The Supreme Court, however, has pointed out in that case, that the power conferred by this Section is very wide and that the repeated use of the word 'any' throughout the length of the section clearly indicates the widest amplitude of power and that there is nothing to limit the action under this section 'to something in the interest of the accused only', but 'the action may equally benefit the prosecution'. It may be noted that in Govani's case (supra) the power 'to summon and examine' a witness under Section 540, Criminal Procedure Code, was exercised by the Magistrate after the prosecution evidence was closed and the accused was examined under Section 342 Criminal Procedure Code and the order was upheld by the High Court and the Supreme Court and it was held by the Supreme Court that 'as the Section stands, there is no limitation on the power of the Court arising from the stage to which the trial might have reached'.
19. We have travelled a very long distance from the days when the Court could not see a thing unless shown, or hear a sound unless made, by the parties or their witnesses before it and was to act as if it were a mere Judge in a combat of boxers or wrestlers or a competition of singers or musicians and only to declare as to who has performed best, It is now firmly established that if the Court feels that certain evidence is available or can reasonably be made available and the same would be essential to a just decision of the case, whether in favour of the prosecution or the defence, the Court is not merely to fold its hands and to bang the prosecution or to hang the defence simply because they or any of them did not take reasonable Uteps to bring such evidence on record. Neutrality, if it means, as it does, impartiality, is surely the first thing for a judicial decision. But neutrality, if it also means, as it does, non-action, then such neutrality, in such circumstances as aforesaid, would amount to a failure to exercise a jurisdiction vested in a Court under Section 540, Code of Criminal Procedure, read with Section 165, Evidence Act, which two sections, complementing each other, vest a Judge with the widest possible jurisdiction to take all steps to bring on record all such evidence as it would think to be essential for a just decision.
The learned Judge in this case has completely failed to advert to this aspect and was wrong in rejecting the application on behalf of the prosecution and thereby failed to exercise a jurisdiction vested in him by law. The impugned order, therefore, must be set aside and the case must be sent back to the learned Judge for disposal according to law with this direction that the learned Judge shall summon and examine the three witnesses mentioned in the application filed by the prosecution but that their evidence shall be confined only to the question as to whether the witness concerned was no longer traceable and could not be found to be recalled for cross-examination after charge.
20. One word more before I conclude. As already noted, the learned Judge rejected the prayer of the prosecution to examine three more witnesses to prove the untraceability of the witness concerned, solely on the ground that 'ample opportunity' was given to the prosecution to produce the witness concerned for cross-examination after charge. No doubt, the learned Judge, as will appear from the Order-sheet, afforded good deal of opportunities to the prosecution to produce the witness concerned and also other witnesses for cross-examination after charge, but the prosecution failed to produce the witness concerned after charge. It should be noted that before charge, under Section 252, Code of Criminal Procedure, the prosecution is to produce evidence and the Court is only 'to take all such evidence as may be produced by the prosecution', but after a charge is framed and the accused 'refuses to plead or does not plead or claim to be tried', the Court, under Section 256 of the Code, must ascertain as to whether the accused 'wishes to cross-examine' all or any of the witnesses examined before charge and 'if he says he does so wish, the witnesses named by him shall be recalled and after cross-examination and re-examination (if any), they shall be discharged'.
The conspicuous difference in the words in Section 252 and Section 256, auoted and underlined as above, makes the conclusion irresistible that while before charge under Section 252, it is for the prosecution to produce or not to produce witnesses and the Court is only obliged to take such evidence 'as may be produced by the prosecution', after charge, however, when the accused signifies his intention to cross-examine the witnesses, the duty of recalling those witnesses is cast by Section 256 on the Court and the mere fact that the prosecution has not taken steps or has failed to procure the attendance of those witnesses cannot absolve the Court of its duty to take reasonable steps to do so. As pointed out by Das Gupta, J., (as his Lordship then was) in the Division Bench decision of the Calcutta High Court in Bepin Behari Maity v. Paban Sardar : AIR1951Cal418 . 'If the accused wanted to cross-examine any of the witnesses, it was the Magistrate's duty to take steps and secure their presence.' The learned Judge pointed out that in the first portion of Section 256, a duty in terms has been cast on the Magistrate to enquire and to ascertain from the accused whether he wished to cross-examine any, and if so which, of the witnesses for the prosecution and that there can be no reason to think that when this Section proceeds to say that 'the witnesses named by the accused shall be recalled', the duty of calling is cast not on the Magistrate but on the prosecution.
And his Lordship finally held that 'if it was intended by the Legislature that not the Magistrate who has ascertained from the accused what witnesses the accused wants to cross-examine but the complainant will have to produce those witnesses, it would have said so clearly in so many words'. The same view was also expressed by the Allahabad High Court in the Division Bench decision in Saghir Uddain v. Mt. Munni AIR 1949 All 428 : 50 Cri LJ 674. referred to with approval by Das Gupta, J. in Bepin Behari's case (supra). It was observed by Desai, J., Wanchoo, J. (as his Lordship then was) concurring that under Section 256 it is for the Magistrate to ascertain from the accused if he wished to cross-examine any of the prosecution witnesses, and 'when this duty is considered together with the requirement that on the accused's answering in the affirmative, 'the witness named by him shall be recalled', it follows that it is for the Magistrate to recall them and not for the complainant'. It was pointed out further that after cross-examination and re-examination, the witnesses are to be discharged and such duty of discharging can be performed only by the Magistrate and it was held that 'if one has regard to the context in which the words 'shall be recalled' and 'shall be discharged' are used, when the duty of discharging is upon the Magistrate' it follows that the duty of recalling also is upon him' and that 'all the other acts to be done under Section 256 are also to be done by him.'
21. I have discussed this aspect in some details only to impress upon the learned Judge that he does not discharge the obligation imposed upon him by Section 256 by merely affording 'ample opportunity' to the prosecution to produce the witnesses examined before charge who are required by the accused for cross-examination after charge, but that in order to perform the duty cast upon him by that section, he must take steps to secure their presence and exhaust all processes for securing their attendance. Any way, in view of the order which I propose to make, as indicated hereinbefore, this question need not be pursued any further.
22. In the result, the revision succeeds and the impugned order, so far it relates to the refusal by the learned Judge to summon and examine the three witnesses as prayed for by the prosecution in its application, is set aside and the learned Judge is directed to summon and examine those three witnesses mentioned in the application as aforesaid with this further direction that their evidence shall be confined only to the question as to whether the witness concerned was no longer traceable and could not be found to be recalled for cross-examination after charge.
M.M. Singh Gujral, C.J.
23. I agree.