Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.
Section 33 of Indian Evidence Act (IEA) deals with the admissibility of evidence given by a witness in a previous judicial proceeding or before a person authorized by law to take evidence, for the purpose of proving the truth of the facts which it states, in a subsequent judicial proceeding. This provision is primarily invoked in situations where the witness is unavailable to testify in the subsequent proceeding due to death, inability to be found, incapacity to give evidence, or being kept out of the way by the adverse party.
Conditions for Admissibility of Section 33 of Indian Evidence Act
To be admissible under Section 33 of Indian Evidence Act, the following conditions must be met:
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Identity of Parties or Representatives: The subsequent proceeding must be between the same parties or their representatives in interest as the previous proceeding in which the witness testified. This ensures that the parties have had an opportunity to cross-examine the witness on the relevant facts.
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Right and Opportunity to Cross-examine: The adverse party in the previous proceeding must have had the right and opportunity to cross-examine the witness on the facts in question. This safeguards the right to fair trial and ensures that the evidence is not one-sided.
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Substantially Same Issues: The questions in issue in the subsequent proceeding must be substantially the same as those in the previous proceeding. This ensures that the evidence is relevant to the issues being determined in the subsequent proceeding.
Exceptions and Explanations Section 33 of Indian Evidence Act
The proviso to Section 33 of Indian Evidence Act provides for two exceptions to the requirement of identity of parties:
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Criminal Proceedings Initiated by Private Person: In criminal proceedings instituted by a private person, the criminal trial or inquiry shall be deemed to be a proceeding between that person and the accused if the person is permitted by the court to conduct the prosecution under Section 302 of the Code of Criminal Procedure, 1973.
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Other Criminal Proceedings: In criminal proceedings not falling under the first exception, the proceeding shall be deemed to be a proceeding between the State and the accused.
The Explanation to Section 33 of Indian Evidence Act clarifies that the term “judicial proceeding” includes any proceeding before a court or any person authorized by law to take evidence.
Rationale and Significance
Section 33 plays a crucial role in ensuring that relevant evidence is not lost or rendered inadmissible due to the unavailability of a witness. It allows for the use of previous statements made by a witness under oath, provided that certain conditions are met to safeguard the rights of the parties and ensure the reliability of the evidence.
Here are some detailed case laws on Section 33 of Indian Evidence Act:
Bal Gangadhar Tilak v. Shriniwas Pandit (AIR 1915 PC 7)
This case involved a question of whether evidence given in a previous civil proceeding could be used in a subsequent criminal proceeding. The Privy Council held that the evidence could not be used unless it was shown that the conditions in Section 33 of Evidence Act were satisfied. These conditions are that:
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- The proceeding was between the same parties or their representatives in interest;
- The adverse party in the first proceeding had the right and opportunity to cross-examine the witness; and
- The questions in issue were substantially the same in the first as in the second proceeding.
V.M. Mathews v. S. Sharma (1995) 6 SCC 122
This case involved a question of whether the evidence of a witness who had died could be used in a subsequent proceeding. The Supreme Court of India held that the evidence could be used if it was shown that the conditions in Section 33 of Evidence Act were satisfied. The Court also held that the evidence could be used even if the witness had not been cross-examined in the previous proceeding, provided that the adverse party had the opportunity to cross-examine the witness.
Kottam v. Umar (ILR 46 Mad 117)
This case involved a question of whether the conditions in Section 33 of the Evidence Act could be waived. The Madras High Court held that the conditions could not be waived in criminal cases.
R v. Scaife (1851) 20 L.J.M.C 229
This case involved a question of whether the evidence of a witness who had been kept away from the court by one of the parties could be used in a subsequent proceeding. The Court of Queen’s Bench held that the evidence could be used against the party who had kept the witness away, but not against the other parties.
These are just a few of the many case laws that have been decided on Section 33 of the Indian Evidence Act. The section is a complex one, and there are many factors that a court must consider when deciding whether to admit evidence under the section.
Conclusion
Section 33 of Indian Evidence Act serves as a valuable tool for admitting evidence that would otherwise be lost due to the unavailability of a witness. By adhering to the prescribed conditions, courts can ensure that the evidence admitted under this provision is relevant, reliable, and fair to all parties involved.