The Judgment of the Court was delivered by

Mitter, J.:— This Rule is directed against an order of acquittal.

2. The petitioner's father Kali Charan Mukherjee, since deceased, was the complainant in a case of cheating against the opposite party. Kali Charan was a retired Magistrate. On or about August 9, 1947, the opposite party represented to the complainant that he was in a large way of business and that pending the payment to him of a bill which was due to him from Messrs. Birla Bros. Ltd. he required a temporary loan of Rs. 5,000. The opposite party asked the complainant for the loan and promised to repay it by November 7, 1947, at the latest. The complainant's case was that by reason of the said representations, which he believed, he was induced to deliver to the opposite party a cheque for Rs. 5,000 which the opposite party in due course cashed. According to the complainant in order to create confidence in his mind the opposite party deposited with the complainant as security two policies of life insurance for Rs. 10,000 and Rs. 1,000 respectively. As the opposite party failed to repay the loan, the complainant became suspicious and caused enquiries to be made and learnt that the policies concerned had lapsed before they were deposited with him and that the opposite party had never had any dealings with Birla Bros., and nothing was therefore due to him from them. On these allegations the complainant instituted a case against the opposite party under section 420, I.P.C After examining some six witnesses including the complainant, a charge under-section 420, I.P.C, was framed against the opposite party. The complainant died before being cross-examined after charge. The case, however, proceeded. The learned Magistrate held that the complainant's evidence before charge was in-admissible under section 33 of the Evidence Act and that the residue of the evidence was insufficient to prove the case. Accordingly, he acquitted the accused. It is to be observed that the learned Magistrate believed the defence evidence and came to the conclusion that in the absence of evidence of the complainant the prosecution had failed to prove that the representations alleged to have been made by the opposite party were false.

3. The point of law for decision is whether the complainant's evidence before charge was admissible under section 33 of the Evidence Act. section 33 of the Indian Evidence Act is as follows:

33. Evidence given by a witness in a judicial proceeding, or before any person authorized 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.

4. One of the requirements of the section being that the adverse party in the first proceeding had the right and opportunity to cross-examine, we have to decide whether or not the opposite party had the right to cross-examine the complainant before the charge was framed. This brings us to the question whether in trials of warrant cases an accused has a right to cross-examine witnesses before charge is framed. That a party has a right to cross-examine his adversary's witness is obvious. The law gives him such a right the question is, at what point of time in the course of a trial, has he such a right. Section 135 of the Indian Evidence Act provides that the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of such law, by the discretion of the Court. We must, therefore, look to the Code of Criminal Procedure to determine when an accused in a warrant case has the right to cross-examine witnesses for the prosecution. Chapter XX of the Code of Criminal Procedure deals with the procedure relating to the trial of summons cases. Chapter XXIII regulates the procedure relating to trials before High Courts and Courts of Session. Chapter XVIII is concerned with enquiries into cases triable by a Court of Session or the High Court, whereas Chapter XXI deals with procedure relating to the trial of warrant cases. There is no specific provision about cross-examination of witnesses either in Chapter XX or in Chapter XXIII, while there are such provisions both in Chapter XVIII and Chapter XXI. In trials of summons cases and in those before a Court of Session or the High Court, each witness is cross-examined as soon as his examination-in-chief is concluded. There can be no doubt that in these trials the right to cross-examine has to be exercised as soon as the examination-in-chief is over. With regard to Chapter XVIII which deals with the procedure for enquiries into cases triable by a Court of Session or the High Court, the following provisions are relevant to the present topic:

208. (1) The Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the Magistrate.

(2) The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them.

(3) If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.

(4) Nothing in this section shall be deemed to require a Presidency Magistrate to record his reasons.

209. (1) When the evidence referred to in section 208, sub-sections (1) and (3), has, been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

210. (1) When, upon such evidence being taken and such examination (if any) being made, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.

(2) As soon as such charge has been framed, it shall be read and explained to the accused, and a copy thereof shall, if he so requires, be given to him free of cost.

These provisions clearly show that in an enquiry into a case triable either by a Court of Session or by the High Court, the accused's right to cross-examine prosecution witnesses must be exercised before the Magistrate makes up his mind either to discharge the accused or to commit him for trial. Turning now to Chapter XXI which deals with the procedure relating to the trial of a warrant case, we find a specific provision providing for cross-examination of prosecution witnesses after charge has been framed. The following provisions show how the stage is reached when the accused's right of cross-examination arises:

252. (1) When the accused appears or is brought before a Magistrate, such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:

Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.

254 If, when such evidence and examination have been taken and made, or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.

255. (1) The charge shall then be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.

(2) If the accused pleads guilty, the Magistrate shall record the plea, and may in his discretion convict him thereon.

256. (1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state at the commencement of the next hearing of the case or, if the Magistrate, for reasons to be recorded in writing, so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. 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 evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.

(2) If the accused puts in any written statement, the Magistrate shall file it with the record.

These provisions are in marked contrast with those in Chapter XVIII. Chapters XX and XXIII contain no specific provision about cross examination. In view of the absence of any provision as regards cross-examination in Chapters XX and XXIII, and the provision in Chapter XVIII providing for immediate cross-examination it is clear that the legislature deliberately laid down a particular stage in a warrant case when only can an accused exercise his right of cross-examination. For the same reason, it seems to us that the provisions of Chapter XXI do not contemplate any previous right of cross-examination by the accused. In this case we are not concerned with the question whether in a warrant case an accused is to be permitted to cross-examine before charge. He certainly has no such right.

5. On a consideration of the provisions of Chapters XVIII, XX, XXI and XXIII, we must hold that in a warrant case an accused has no right to cross-examine before charge. His right to cross-examine prosecution witnesses arises after charge. That being so, it cannot be said that the opposite party had the right to cross-examine the complainant before he died. In our view, the learned Courts below were accordingly right in holding that the complainant's evidence given before charge was inadmissible under section 33 of the Evidence Act.

6. We may now turn to the cases cited before us in support of the respective contentions of the parties. The case of Ashirabad Muchi v. Maju Muchini (1) (8 C.W.N 838), was relied upon for the view that there was a right to cross-examine before charge. In our view, this case did not purport to decide that in a warrant case an accused had a right to cross-examine before charge. The judgment of the Court was as follows;—

“We think that the Deputy Magistrate acted bona fide from a mistaken view of the law and that therefore there is no good ground for transferring the case. We direct him to proceed with the trial.

We desire to point out that he should at once give the accused an opportunity to cross-examine the prosecution witnesses, if they should so desire, even though the charge may not he framed.

With these observations we discharge the Rule.”

7. As it appears from the judgment, the case was sought to be transferred on the ground that the Magistrate had refused the prayer of the accused to cross-examine the prosecution witnesses before charge had been framed. The judgment shows that the learned Magistrate had taken the view that he could not allow cross-examination before the charge, whereas the learned Judges of the High Court took the view that the Magistrate's refusal was referable to a mistaken view of the law. The judgment, in our opinion, is consistent with the view that although an accused has no right to cross-examine before charge, he should be given an opportunity to do so even before charge. As we said before, we are, however, not called upon to decide any such question in this case. The difference between an accused's alleged right to cross-examine and the Court's duty to allow cross-examination before charge was emphasised by Cuming and Lort Williams, JJ., in Emperor…Prosecutor; v. C.A Mathews…Accused. (2) (A.I.R 1929 Cal. 822). Cuming, J., observed:

“Now as far as I can see the accused in a warrant case has no right to cross-examine the prosecution witnesses until after the charge has been framed. The Magistrate may in his discretion allow him to do so, and probably if the accused requested, would allow him to do so but the accused cannot claim as of right to cross-examine until the charge has been framed. Section 138, Evidence Act, on which the prosecution relies deals not with the rights of the party but only provides the order in which the proceedings are to be conducted: see the case of Ashirbad Muchi v. Maju Muchini (1) (supra), where it was held that the Magistrate should give the accused an opportunity to cross-examine even though the charge may not be framed. But that is not the same as saying that the Court must give him an opportunity. No doubt section 256 does not prohibit cross-examination at a previous stage but that is not the same as saying that the accused has any right to cross-examine. I am of opinion that until be stage of the case provided for in section 256 is reached the accused has no right to cross-examine. That being so, in the present case the accused had no right to cross-examine and so the evidence of Mr. Milne is not admissible in evidence under section 33.”

8. In Queen Empress v. Sagal Samba Sajao (3) (I.L.R 21 Cal. 642), there are certain observations which would seem to support the view that there exists a right to cross-examine before charge. Reliance was placed on the following passage at page 663:

“The reference made by Mr. Hill to section 256 as to cross-examination after charge has been drawn in a warrant case does not really affect this point, for it does not prohibit cross-examination before a charge. As we understand the law, it permits a further cross-examination expressly directed to the case found and embodied in the charge, and would enable an accused person, if he has reserved his cross-examination, to exercise his right at that time subject to a discretion given to the Magistrate by section 257.”

9. The question for decision in that case, however, was whether in an enquiry before commitment an accused had a right of cross-examination and not whether an accused in a warrant case had a right of cross-examination before charge. The observations quoted above were therefore clearly obiter and not binding upon us.

10. Speaking with respect, the case of Emperor…Prosecutor; v. C.A Mathews…Accused. (2) (supra) was rightly decided. G.N Das and K.C Das Gupta, JJ., took the same view in the unreported case of King v. S.C Mitter (4) (Criminal Appeal No. 236 of 1949). Both these decisions being binding on us, it is not necessary to deal with decisions of other High Courts in which the contrary view was expressed.

11. In the absence of the complainant's evidence, the prosecution, in our view, failed to prove that the opposite party was guilty of any offence under section 420, I.P.C This application must, therefore, fail. The Rule is accordingly discharged.

Sen, J.:— I agree that the Rule should be discharged. The charge under section 420, I.P.C, was based on the case that on the false representation that he had got a contract for construction work from the firm of Birla Brothers for 6 or 7 lakhs of rupees and that he wanted a temporary accommodation for paying his labourers, the accused Anath Bandhu Datta obtained a sum of Rs. 5,000 from the complainant Kali Charan Mukherji. The complainant died after he had been examined as a witness but before he had been cross-examined after the framing of the charge. The learned Magistrate held that the evidence of the complainant was not admissible under section 33 of the Indian Evidence Act and so could not be considered; but on the merits he found that the accused was a subcontractor under one of the contractors, under Birla Brothers, and that his representation to the complainant as proved by the latter's son, the petitioner Ajitananda, was at most an exaggeration. The learned Magistrate observed that the complainant bad chosen a wrong forum for his remedy. It does not appear that the consideration of the evidence of the complainant would have affected the above finding. On the facts of the case, therefore, this Rule against acquittal must be discharged.

12. On the question of law, I would reserve my opinion. It appears to me that there is a conflict between the cases of this Court holding that the evidence recorded in ° such a case is not admissible under section 33 of the Indian Evidence Act, because the accused in a warrant case has no right to cross-examine a witness before the framing of the charge, and the cases holding that the trying Magistrate should give the accused an opportunity to cross-examine a witness even before the charge has been framed. This conflict will have to be resolved by a Full Bench in order to put the relevant law into a satisfactory state, though in the present case such reference is not necessary in view of the facts of the case. But I should indicate clearly why I think that there is a conflict.

13. Where the question before the Court is whether the deposition recorded in a warrant case of a witness who is not available for cross-examination after charge, is admissible under section 33 of the Indian Evidence Act, this Court had tended to answer the question in the negative, and has given the reason that in a warrant case, the accused has no right to cross-examine the witness before the framing of the charge. This was the view taken in the case of Emperor…Prosecutor; v. C.A Mathews…Accused. (2) (A.I.R 1929 Cal. 822), and this view has been followed in other cases, e.g, S.C Mitter v. State (5) (A.I.R 1950 Cal. 435), and the unreported case of King v. S.C Mitter (4) (Criminal Appeal No. 236 of 1949, decided on 3.3.1950).

14. On the other hand, where the question is whether a Magistrate may rightly refuse to allow cross-examination of a witness in a warrant case before the charge has been framed, this Court has also tended to answer the question in the negative.

15. The earliest case in which the question was discussed appears to be Sagal Samba v. Emperor (3) (I.L.R 21 Cal. 642). In that case it was observed that section 256 of the Criminal Procedure Code, properly understood, permitted a further cross-examination expressly directed to the case found and embodied in the charge (p. 663), but this did not affect the right to cross-examine a witness immediately after his examination-in-chief, such right being understood from section 138 of the Indian Evidence Act. The matter for the consideration of the Court in that case was whether the accused had the right to cross-examine witnesses in an inquiry before the committing court: section 208 of the Code of 1882 did not contain sub-section (2) added in the Code of 1898 expressly providing that the accused shall be at liberty to cross-examine the witnesses examined for the prosecution. Hence this case has been distinguished in some cases as obiter dicta in respect of the observations relating to a warrant case, but there can hardly be any doubt that this case laid the foundation for the long standing practice in this State relating to the trial of warrant cases, of tendering as a matter of course, every witness for the prosecution for cross-examination before charge. The view that the accused in a warrant case has the right of cross-examination before charge is the basis of the decision in the case of Ashirbad Muchi v. Maju Muchini (1) (8 C.W.N 838). In that case the trying Magistrate did not al low cross-examination of witness by the accused before framing of the charge. In revision this Court gave the direction that the accused should be given the opportunity to cross-examine prosecution witnesses before charge, observing that the Magistrate had acted from a mistaken view of the law. In Emperor…Prosecutor; v. C.A Mathews…Accused. (2) (A.I.R 1929 Cal. 822), Cuming, J., held that the decision in Asirbad Muchi's case (1) (supra), that the accused should be given an opportunity to cross examine witnesses before charge did not in any way conflict with the view that the accused had no right to cross-examine witnesses before charge. With due respect to his Lordship, I am unable to follow this reasoning. In Ashirbad Muchi's case (1) (supra), their Lordships held that the Magistrate had acted from a mistaken view of the law (in not allowing cross-examination by the accused before charge) and that he should at once give the accused an opportunity to cross-examine the witness before the framing of the charge if he should so desire. It is clear that their Lordships took the view that under the law the accused had the option of cross examining witnesses before charge, i.e, they had the right to cross-examine before charge. It is the accepted practice to give the accused the option to cross-examine every witness before charge, and any Magistrate having the temerity to refuse the option would find himself corrected. In King v. S.C Miner (4) (Cr. Appeal No. 236 of 1949), Das Gupta, J., observed as follows:— “I cannot think of any case where the Magistrate will be justified in not allowing the accused to cross-examine witnesses before charge. That however is not the same thing as a right under the law. The difference between a right of the accused to cross-examine and the duty of the court to allow cross-examination was emphasised by Cuming, J., in the case of Emperor…Prosecutor; v. C.A Mathews…Accused. (2) (supra)”. With due respect to his Lordship, I do not see how it can Be maintained that though the Magistrate has the duty to allow cross-examination before charge in every case, yet the accused has no right to cross-examine before charge. If a Magistrate were to refuse cross-examination before charge, the accused would move this Court in revision and get an order for allowing such cross-examination, as in Ashirbad Muchi's case (1) (supra) Thus the accused can enforce his right of cross-examination before charge, and it appears to be idle to hold that he has no such right.

16. To be consistent, we should either hold clearly that the accused has such a right, and that therefore the deposition of a witness who ceases to be available after training of the charge is admissible, or that the accused has no such right and that a Magistrate would be quite right in refusing cross-examination before he has framed the charge in a warrant case. At present under the two sets of rulings referred to, the accused has it both ways in his favour, but such result is against elementary justice.

P.S