LALLAN PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) A. P. Sahi, J. This revision questions the legality of the order dated 23. 1. 2008 whereby the application moved by the prosecution for accepting the statements of the witnesses in the previous trial against the applicant has been accepted for being taken on record for the purposes of the present pending trial on the ground that such evidence was neither admissible nor entertainable inas much as this is a de novo trial and not a re-trial of the earlier proceedings.

(2.) SRI Anoop Trivedi, learned Counsel for the applicant, contends, that any evidence recorded in the previous trial is of no consequence, as the entire trial was invalid, as held in the judgment dated 4. 5. 1982, which has become final between the parties. He contends that the subsequent trial, which was initiated on a fresh cognizance with a fresh charge-sheet, was challenged on the ground of double jeopardy, and the bar contained in Section 300, Cr. P. C. which contention was negatived by this Court vide judgment dated 29. 5. 1998 holding, that since the entire trial previously held was deficient on account of want of proper sanc tion, therefore, the bar of Section 300, Cr. P. C. would not operate and a fresh trial was permissible consequent to a valid sanction in respect of the same offence. SRI Trivedi contends that for the same reason when the earlier trial is being treated not to bar a second trial, then on the same logic, any evidence collected or witness examined, cannot be treated to be a relevant piece of evidence worth receiving and admitting in the present proceedings inasmuch as the entire trial was. vitiated being corum non-judice. He contends that if the entire proceedings were without jurisdiction, then in that event any evidence recorded therein would be inadmissible in law. It is urged that the decision relied upon by the Court below in the case of Satyajit Banerjee v. State of West Bengal and others, 2005 (1) JIG 503 (SC), is totally misplaced inasmuch as the said decision was in a matter where the High Court had remitted the matter to the trial Court in the same pro ceedings for re-trial. It is urged that a case of re-trial cannot be equated with the proceedings of a de novo trial and, therefore, the ratio of the said decision was not applicable on the facts of the present controversy and hence the order deserves to be set aside.

(3.) HAVING heard learned Counsel for the parties, one will have to refer to the provisions of Section 33 of the Indian Evidence Act, which is being quoted herein below: "33. Relevancy of certain evidence for proving, in subsequent proceed ing, the truth offsets therein stated.- Evidence given by a witness in a judi cial proceeding, or before any person authorised 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 evi dence, 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 representa tives in interest; that the adverse party in the first proceeding had the right and opportu nity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. "