STATE OF SIKKIM Vs. PEMBA SHERPA

JUDGEMENT

(1.) THE prosecution, having failed to tender one of the witnesses for cross-examination after charge in spite of repeated opportunities, applied to the Court to summon and examine three more witnesses to prove that the whereabouts of the first-mentioned witness were no longer traceable, so that his deposition before charge could be admitted in evidence under Section 33, Indian Evidence Act, 1872. In Karmadhan Lama v. State of Sikkim 1979 Cri LJ 610 I have held that in a warrant-case (not instituted on a police report) an accused has an absolute right to cross-examine a prosecution witness before charge and therefore, the statement of a witness before charge can be treated as evidence, even though the witness is not and cannot be recalled for cross-examination after charge, if before charge the accused had the opportunity to cross-examine him.

(2.) IN this case, the witness concerned was in fact cross-examined by the accused before charge and therefore, according to the ratio of Karmadhan Lama's case (supra), the accused had both the right and the opportunity to cross-examine within the meaning of the proviso to Section 33 of the Evidence Act and the prosecution would, therefore, if Section 33 applies, be entitled to rely on his deposition "for the purpose of proving the truth of the facts" stated therein if the prosecution could prove that, as alleged by it, the whereabouts of the witness concerned could no longer be ascertained or traced in spite of reasonable endeavours. And that is precisely what the prosecution in this case tried to do by requesting the Court through a written application to examine three more witnesses, before the accused was called upon to make his statements under Section 342, Code of Criminal Procedure and that is what the learned Sessions Judge has refused to do by his impugned order. If the learned Judge had good reasons to do so. the revision shall fail: but if the reasons are not good enough, the revision should succeed. It may be noted that under the provisions of the Sikkim Criminal Procedure Act, 1976, the Code of Criminal Procedure, 1898, is still the law relating to Criminal Procedure in Sikkim with some modifications, one being that the trial before the Court of Session is also regulated by and according to the provisions for trial in warrant-cases as contained in Chapter XXI of the Code.

(3.) NOW the decision in Karmadhan Lama's (case) 1979 Cri LJ 610 (Sikkim) (supra) being a single-Judge decision is not obviously binding on us sitting here in Division and I have, therefore, taken this opportunity to consider afresh, with usual guidance from my Lord the Chief Justice, as to whether the said decision requires reconsideration and I have thought it desirable and necessary to do so in view of the importance of the question involved and the sharp cleavage of opinion among the different High Courts on the point, not yet authoritatively settled by any decision of the Supreme Court. The decision in Karmadhan Lama's case (supra) being a decision of mine, I will be in a much more comfortable position to overcome and, if necessary, to overrule the same, while it may be somewhat embarrassing for my Lord to declare, while sitting with me, that I have gone wrong. As Lord Dennine pointed out (see "the Discipline of Law" -- Page 64), "it is always easier to overcome a decision when you have been a party to it yourself. You can correct your own mistakes. "