STATE OF ORISSAversusPRASANNA KUMAR MOHANTY

                  T2009] 5 S.C.R. 843


                    STATE OF ORISSA                            A
                             v.
             PRASANNA KUMAR MOHANTY
            (Criminal Appeal No. 704 of 2009)
                      APRIL 9, 2009
                                                               B
 [S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]

    EVIDENCE ACT, 1872:

     s. 33 - Relevance of examination-in-chief of a witness if c
he was not available for cross-examination - HELD: Despite
the fact that two opportunities were granted to defence to cross-
examine the witness, he was recalled for' cross-examination
- Further, for a long period he did not ma~e himself available
for his cross-examination - Therefore, s.33 is not applicable 0
to facts of the case - However, if the said witness is not
capable of giving evidence by appearing in court, prosecution
may file an application for his cross-examination through a
Commissioner who would consider as to whether the witness
is capable of deposing before him - Order is passed in E
exercise of jurisdiction under Article 142 of the Constitution,
as such, it will not be construed as a precedent- Constitution
of/ndia, 1950 - Article 142.

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 704 of 2009.                                               F

    From the Judgment & Order dated 20.4.2007 of the High
Court of Orissa at Cutack in Criminal Misc. No. 552 of 2007.

    Radha Shaym Jena and Siddharth Panda for the
Appellant.                                       G

    Shibashish Misra for the Respondents.
    The following Order of the Court was delivered:
                             M3                                H
    844          SUPREME COURT REPORTS - [2009] 5 S.C.R.


A
          Delay condoned.
                                  ORDER
                                                                       -
          Leave granted_

B         We have heard learned counsel for the parties.

          The prosecution against the respondent herein was
  initiated in the year 1987. The Investigating Officer Bipin Behari
  Mahapatra was examination-in-Chief on 1.9.1999.
C Unfortunately, on that date he could not be cross examined as
  respondent herein had filed two Criminal Miscellaneous
  Applications before the High Court although the learned Special
  Judge proceeded on the basis that the cross examination would
  be treated to have been declined. He was also present in Court
  on 15.1.2003 and 7.8.2003. By an Order dated 7.8.2003,
D however, on an application filed by the defence, the said Bipin
  Behari Mahapatra was recalled for cross examination. The
  matter was adjourned to 12.9.2003 on which date he was
  directed to remain present.

E        It, however, appears that although the matter for further
  hearing was fixed from 12.9.2003 till 18.8.2006 no prosecution
  witness including the said investigating officer was present in
  the Court. The learned Special Judge went on issuing
  summons for his appearance so that he could be cross
F examined by the defence. Only on 18.8.2006, the learned
  Court's attention was drawn on an endorsement to the
  summons that he would not be able to attend the Court due to
  his illness. On and about 8.1.2007, an application was filed by
  the special Public Prosecutor to exonerate Mr. Mahapatra from
G cross examination on the ground of his illness. By reason of
  his order dated 24.3.2007 the learned Special Judge, however,
  directed as under :-
        "From the aforesaid circumstances, it is thus seen that the
    defence did not take steps for cross-examination of P.W.9 on
H
  STATE OF ORISSA v. PRASANNA KUMAR MOHANTY                845


closure of this evidence in Chief on 10.9.1999. Vigilance took A
adjournment to procure attendance of P.W.9 on the ground of
his illness and ultimately report is received that P.W.9 being
aged 75 years due to prolong illness is not in a position to move
and understand things having lost memory. No doubt it js
necessary to cross examine the witness to assess his veracity B
and without cross examine the defence looses his valuable
rights. But in the present case when P.W.9 due to old age and
prolonged illness has lost his memory and unable to understand
things no fruitful purpose would be served to insist for his
attendance or to depute commission for his cross-examination c
in a case of this nature. Hence it is needless to insist upon the
attendance of P.W.9 for his cross examination. However, the
veracity of his evidence in chief shall be assessed with
reference to other materials on record during final argument of
the case. Accordingly, the petition filed on behalf of Special
                                                                  0
P.P. Vigilance is disposed of."
    The respondent filed an application under Section 482 of
the Criminal Procedure Code there against before the High
Court. The High Court, while relying upon a decision of this
Court in Gopa/ Saran vs. Satyanarayan reported in 1989 (3) E
sec 56 held as under :-
     "In view of what has been decided in the above reported
cases, it is clear that when a witness does not make himself
available for being cross-examined after his examination-in- F
Chief, it will be difficult on the part of a Court to rely on his
evidence in examination-in-Chief. The purpose of cross-
examination of a witness is to test the veracity of the statement
made by a witness in his examination-in-Chief and where a
witness is not cross examined, for his non availability it will be G
unsafe to reply on examination in chief of such a witness."
     Mr. Radha Shyam Jena, learned counsel appearing on
behalf of the appellant-State submits that keeping in view the
fact that P.W.9 was available for cross examination and the
defence had been given ample opportunity to cross examine H
    846          SUPREME COURT REPORTS              [2009] 5 S.C.R.


A   him, Section 33 of the Indian Evidence Act, 1872 will be
    applicable. It was urged that the decision of this Court in Gopa/
    Saran (supra) is not applicable to the facts and circumstances
    of this case as this Court was dealing therewith a civil matter.

         Mr. Shibashish Misra, learned counsel appearing on behalf
8
    of the respondent, however, supported the impugned judgment.

        Section 33 of the Indian Evidence Act, 1872 reads as
    under:-

c        "33.Relevancy of certain evidence for proving, in
    subsequent proceeding, the truth of facts therein stated.-
    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
0   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
E   circumstances of the case, the Court considers unreasonable:

          Provided -

         that the proceeding was between the same parties or their
    representatives in interest;
F
        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."
G
       The said provision therefore, will be applicable inter alia
  in a case where either the witness who has been examined in           \
  chief is incapable of giving evidence or is absent without any
  amount of delay or expense which the Court considers
H unreasonable.
     STATE OF ORISSA v. PRASANNA KUMAR MOHANTY                847


         The Criminal trial or inquiry shall be deemed to be a A
    proceeding in terms of the explanation appended to Section
    33 between the prosecutor and the accused. However, in this
    case, despite the fact that two opportunities were granted to
    the defence for cross examining the said investigating officer
    but he was, as noticed hereinbefore, was recalled for cross B
    examination. Furthermore, since 2003 to 2006 he did not make
    himself avilable for his cross examination. In that view of the
    matter, we are of the opinion that Section 33 of the Evidence
    Act is not applicable to the facts of the present case.

         However, if the said witness is not capable in giving , C
    evidence by appearing in Court we are of the opinion that the
    prosecution may file an application for his cross examination
    through a Commissioner which may be allowed by the learned
    Trial Judge. It would be for the learned Commissioner to
    consider as to whether he is capable of deposing before him D
    or not.

        We are passing this order in exercise of our jurisdiction
    under Article 142 of the Constitution of India and it may not be
    construed as a precedent.                                        E
           The appeal is accordingly, disposed of.

    R.P.                                      Appeal disposed of.

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