1. This is an application to set aside a sanction to prosecute petitioner appellant for an offence under Section 193, Indian Penal Code; but the only point argued is the admissibility in evidence of petitioner's (appellant's) deposition. This deposition was properly recorded by the District Munsif, but was read over to the witness by a clerk in a room next to the Court room at a distance of 30 feet from the Munsif's seat. There were two clerks sitting between the place where the deposition was read and that where the Munsif sits. Under Order XVIII, Rule 5, Civil Procedure Code, a deposition shall be read over in the presence of the Judge and the witness, and the first question that arises is whether the deposition before us can be deemed to have been read over in the presence of the Judge.' From the evidence on record it does not appear whether the Munsif could actually see the witness and the clerk while the deposition was being read over; but I am satisfied that the provisions of the rule would be adequately complied with if the deposition were read over in a place within the sight of the presiding Judge and from which the witness could draw the attention of the Judge to any mistakes or omissions discovered by him. The reading over of the deposition is primarily intended for the purpose of securing a correct record, and in order to secure this, the witness is given an opportunity of drawing attention to mistakes. The presence of the Judge is required in order to ensure that such an opportunity is really afforded to the witness. Under the old Civil Procedure Code of 1882, the deposition had to be read over in the presence of the parties or their Pleaders as well as of the Judge and the witness. According to Boddam, J., in Kamatchinathan Chetty v. Emperor 28 M. 308'the Vakils are required to be present, that they may call the attention of the witness to any statement appearing in the deposition which may or may not require correction.' The omission of this Safeguard in the new Code leads one to suppose that the Legislature was satisfied that the presence of the Judge was a sufficient safeguard to ensure the correct record of the deposition, for the witness is the best and really the only person who can say that what he had said has been correctly recorded. When, therefore, the deposition has been read over in such a place that the witness can invoke the aid of the Judge to enable him to make any corrections that may be necessary, I think that the requirements of Order XVIII, Rule 5, Civil Procedure Code, are satisfied. It is clear to my mind that the Judge is not required to do more than exercise a general supervision over the reading over of the deposition, for in many cases the deposition is interpreted to the witness in a, language which the Judge does not understand. I am supported in this view, by a judgment of this Court reported as Muthukumara Reddy, In re 9 Ind. Cas. 262 to which my learned brother was a party.
2. Assuming, however, that it has not been proved that the deposition was read over in the manner and circumstances referred to above, we have to consider whether the deposition is or is not admissible in evidence. Such a deposition was held to be inadmissible in Kamatchinathan Chetty v. Emperor 2 Cri. L.J. 756 and also in Mohendra Nath Misser v. Emperor 12 C.W.N. 845 : 8 Cri.L.J. 116 but a different view was taken in Bogra In re: 7 Ind. Cas. 414 : 8 M.L.T. 117 : (1910) M.W.N. 435 : 11 Cri.L.J. 482
3. The view taken in Kamatchinathan Chetty v. Empror 28 M. 308 by Boddam, J., was that the document, though purporting to be a deposition, had been read over and signed without the requirements of the law being complied with and was, therefore, not a deposition and should not have been admitted as such. In Mohendra Nath Misser v. Emperor 12 C.W.N. 845 it was held that the deposition under Section 91 of the Evidence Act was the only evidence admissible in proof of those statements (i.e., the statements in the depositions), and under Section 80 of the same Act it is admissible only if it was taken in accordance with law.' With all deference I am unable to see any provision in Section 80 which declares sujph a document to be inadmissible in evidence, for Section 80 only refers to certain presumptions which a Court shall make when a document purporting to be a deposition taken in accordance with law is produced before it. If it is proved that such deposition is not in all particulars what it purports to be, the presumption would be rebutted; but I can see no authority in Section 80 for holding that such a document would be wholly inadmissible in evidence. Under Section 91 of the Evidence Act, 'in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given of such matter except the document itself.' In this case the statement of the witness has been reduced to the form of a document as required by law, and the document itself has been produced. There appears to be nothing in Section 91 which prohibits the admission of such a document in evidence merely because some of the formalities prescribed by law have been omitted in recording it. Undoubtedly any irregularities in making the record may be considered in determining the value of the document as evidence; but that is not sufficient ground for shutting it out altogether. This was the view taken by Miller, J., in Bogra, In re 7 Ind. Cas. 414 : 8 M.L.T. 117 : 11 Cri.L.J. 482. In Rakhal Chandra Laha v. Emperor 2 Ind. Cas. 697: 10 Cri.L.J. 150 a deposition which was read out in the presence of the Pleader for only one out of 27 accused persons was held to be admissible in evidence in a prosecution for perjury against the deponent, the ground being that it would undoubtedly have been admissible as against the one accused, in whose Pleader's presence it was read over. As, however, it was a deposition in a case against 27 persons, it ought to have been read over in the presence of all under Section 360, Criminal Procedure Code, and the omission to do so would apparently invalidate the deposition according to the view in Kamatchinathan Chetty v. Emperor 28 M. 308 and in Mohendra Nath Misser v. Emperor 12 C.W.N. 845. I think, therefore, that the case in Rakhal Chandra Laha v. Emperor 2 Ind. Cas. 697: 10 Cri.L.J. 150 goes to support the view taken by Miller, J., in Bogra, In re 7 Ind. Cas. 414 : 34 M. 141; (1910) M.W.N. 435 : 11 Cri.L.J. 482, a view with which I respectfully agree. In another case Jyotish Chandra Mukerjee v. Emperor 14 C.W.N. 82 : 10 Cri. L.J. 581 the learned Judges, while referring to certain cases presumably Kamatchinathan Chetty v. Emperor 28 M. 308 and Mohendra Nath Misser v. Emperor 12 C.W.N. 845 were careful not to express either assent or dissent and consequently the case is of little value here. I would, therefore, hold that the petitioner's (appellant's) deposition in this case is admissible in evidence and dismiss the appeal.
4. Ayling, J.--I agree.