Adarsh Sein Anand, J.
1. A case under Sections 366, 376 R.P.C. was registered against the petitioner, and two others at the police station Kothibagh, Srinagar, on the allegation that one Miss Nicoulid Hubberts had been kidnapped and raped at Gulmarg, After recording the evidence at the committal stage, all the accused persons were committed and sent up by the learned Chief Judicial Magistrate, Srinagar, to stand their trial before the learned Sessions Judge, Srinagar.
2. From the perusal of the record it appears that an application was made by the Public Prosecutor under Section 33 of the Evidence Act for admitting the previous deposition of Miss Nicoulid Hubberts and Mr. Bruce Frantizi P.Ws. in evidence at the trial. On these applications the learned Sessions Judge, Srinagar, vide his order dated 29th October, 1974 directed that the deposition of Mr. Bruce P.W. recorded by the committing magistrate would be read as evidence at the trial under Section 33 of the Evidence Act. With regard to Miss Nicoulid Hubberts, it was stated in the order that attempt should be made to secure her presence afresh. It is this order by which the previous deposition of Mr. Bruce was directed to be read as evidence in the trial under Section 33 of the Evidence Act which has been impugned before me by means of this revision petition.
3. I have heard the learned Counsel Mr. I, K. Kotwal appearing for the petitioner and Mr. Amar Chand, Addl. Advocate General for the State.
4. The main contention of Mr. Kotwal, the learned Counsel for the petitioner is that an accused person has a valuable right to cross-examine the witnesses and also confront them with their previous depositions at the trial, when they make a contrary statement at the trial, and this valuable right cannot be taken away except by the settled judicial principles. The learned Counsel has also submitted that there was no material except a letter from the Embassy showing that the presence of Mr. Bruce could not be secured, and that by itself, submits the counsel, was not sufficient to direct the transfer of evidence under Section 33 of the Evidence Act. The counsel also argued that the court had not come to any positive finding as to why it was necessary to read the previous statement of Mr. Bruce under Section 33 of the Evidence Act and as such the transfer of the statement was illegal. I think there is considerable force in the submissions, made by the learned Counsel. In my opinion the learned Sessions Judge has not carefully gone into the merits of this case and has passed the order without following the proceduie established by law. Section 33 of the Evidence Act provides, that when a 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, it may direct that the evidence given by such a person in Judicial proceedings be taken as relevant for the purpose of proving in a subsequent judicial proceedings or in a later stage of the same judicial proceeding, the truth of the fact which it asserts. From the bare reading of Section 33 of the Evidence Act it is evident that before the court can direct the evidence of a witness to be read in evidence it must arrive at a finding, after taking necessary evidence, that the witness could not be procured without delay or expense or for any other reason as contemplated by the section. In the absence of any such finding it would be difficult to hold that the court has really applied its mind to the facts of the case. Merely saying in the order that the witness is not available, without proper material on the record, is to give a finding based on almost no evidence. It must be proved strictly that the witness was not available or was incapable of giving evidence in the later stage of the judicial proceedings before invoking Section 33 of the Evidence Act. Unless that is done, it would be quite improper and irregular to order that the previous deposition of the witness should be read at the trial. A similar matter came up for consideration before a Division Bench of the Lahore High Court in Indar v. Emperor AIR 1930 Lah 1041 : 32 Cri LJ 256 wherein their Lordships have laid down:
The Sessions Judge, before transferring the deposition of a witness in the court of the committing magistrate to his own record, ought to take evidence and record proceedings and if, as a result of the evidence thus taken, he arrives at a judicial decision that the witness could not be found or his presence could not be secured without an amount of delay or expense, which under the circumstances of the case the court considers unreasonable, he can bring his former deposition on the record. But if the Sessions Judge transfers the statement of the witness to the record of the Sessions case simply because the Public Prosecutor makes a statement before him that the witness could not be found, the procedure is contrary to law and wholly irregular and the deposition of the witness thus brought on the record cannot be treated as evidence.
5. In Satish Chandra Seal v. Emperor AIR 1945 Cal 137 : 46 Cri LJ 580 a Division Bench of the Calcutta High Court has held that before the evidence of an absent witness is let in under Section 33 of the Evidence Act the court must arrive at a finding on evidence formally and regularly taken and recorded that one or the other of the grounds specified in the section exists (emphasis mine). The matter also stands concluded by an authoritative pronouncement of their Lordships of the Privy Council in AIR 1946 P.C. 1. Their Lordships while dealing with Section 33 of the Evidence Act held.
Where 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..Their Lordships further held that
when evidence given by a witness in a judicial proceeding is sought to be used under Section 33 in a subsequent judicial proceeding or in a later stage of the same judicial proceedings on the ground that the witness is incapable of giving evidence that fact must be proved strictly. 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.
6. I am in respectful agreement with the law laid down in these authorities, and in my opinion, the learned Sessions Judge, did not follow the procedure established by law before directing the evidence of Mr. Bruce to be read in evidence under Section 33 of the Evidence Act.
7. From the perusal of the record I find that the Sessions Judge, Srinagar, only on a receipt of the letter from the Embassy and without making any further efforts to secure the presence of the witness directed that the earlier deposition of the witness be read in evidence under Section 33 of the Evidence Act. This procedure was clearly erroneous. Apart from the letter from the Embassy there was no other material before the court from which it could form an opinion that it was necessary to read the earlier deposition of the witness under Section 33 of the Evidence Act, and I must say that the letter from the Embassy could not be treated as evidence in the case regarding the nonavailability of the witness. In the circumstances of the case the learned Sessions Judge ought to have recorded the proceedings and taken the evidence in the presence of the accused about the nonavailability of the witness, and after giving proper opportunity to the prosecution and the accused of being heard, arrive at a judicial decision whether the witness could or could not be found or his presence could or could not be secured for any of the reasons contained in Section 33 of the Evidence Act. After having decided that issue the court should have given reasons in its order an to why it was considered reasonable and proper to bring the former deposition of the witness on the record. Nothing of the type has been done in this case and since that has not been done, the learned Sessions Judge has not followed the proper procedure for bringing the former deposition of the witness on the record. I need not emphasize that before resort to Section 30 of the Evidence Act can be taken, it must be proved and proved strictly, as a matter of fact, that the witness was incapable of giving his evidence. The likelihood of prejudice being caused to the accused persons by bringing the earlier deposition of the witness on the record without following the proper procedure cannot be ruled out. It was stated before me by the learned Addl. Advocate General that the witness had not given his full address in the committing court and hence the prosecuting agency could not do anything in the matter except to approach the concerned Embassy. In the first place I must record my strong disapproval of the manner in which the address of the witness was taken in the committing court. The learned committing magistrate should have been more careful to record the complete address of the witness while recording his evidence in the court and should not have considered it an idle formality. The taking down of the address of a witness is with a purpose to secure the presence of the witness at any later stage, if need be. That purpose stands defeated when proper care is not taken by the court and consequential inconvenience is caused. In any event there was no material on the record! before the Sessions Judge to show that any positive or serious attempts had been made to secure the presence of this witness other than through a formal letter to the Embassy. The witness is a foreigner and when he came to Kashmir he must have registered himself with the competent authority under the Foreigners Registration Act, and his address would be noted by that competent authority and the prosecuting agency should have tried to ascertain his address from that authority as also from the contact addresses of this witness from other parts of the country which he visited to serve the witness and secure his presence for recording his evidence. The prosecution should not be allowed to seek resort to the provisions of Section 33 of the Evidence Act save in exceptional circumstances and that also, after following the proper procedure, since the resort to the provision of Section 33 of the Evidence Act has serious consequences so far as the accused is concerned. The procedure adopted by the learned Sessions Judge for directing the transfer of the earlier deposition of Mr. Bruce to the Sessions file is in my considered opinion contrary to law and wholly irregular and the deposition of the witness thus, brought on the record cannot be treated as evidence.
8. I would accordingly allow this revision petition and direct that the deposition of the witness Mr. Bruce brought on the record by the learned Sessions Judge vide order dated 29-10-74 shall not be treated as evidence in the case. The learned Sessions Judge will ask the prosecution to take steps to procure the presence of this witness.
9. 1 must, however, make it clear that if the presence of the witness cannot be secured and the learned Sessions Judge after following the procedure indicated above, comes to the conclusion that the presence of the witnesses cannot be secured for any of the reasons envisaged by Section 33 of the Evidence Act, this order of mine shall not stand in his way to pass appropriate orders directing the transfer of the earlier deposition of the witness Mr. Bruce to his file under Section 33 of the Evidence Act.