Report No. 69

XI. Section 32 (8)

12.180. Introductory.-

12.180. Section 32(8) renders relevant a statement made by a number of persons, which expressed feelings or impressions on their part relevant to the matter in question.

12.181. Number of persons required.-

Illustration (n) to the section illustrates this clause. The relevancy sons required of individual feelings is dealt with by sections 6, 8 and 14, and the relevance of individual opinions by sections 45-51. Section 32(8) on the other hand, relates to statements expressing feelings or impressions, not of an individual, but of an aggregate of individual.- as the exclamations of a crowd.

12.182. The exception to hearsay embodied in this clause is justified on the hypothesis that what a number of people said, may be true, if spontaneous and contemporaneous. The word "statement", as used in the singula.- though not grammatically accurat.- implies that a number of persons must have reacted simultaneously. It has been observe1 that "when a number of persons assemble together to give vent to one common statement, which statement expresses the feelings or impressions made in their mind at the time of making it, that statement may be repeated by the witnesses, and is evidence." Moreover, the expression must be of feelings or impressions on their part, which means that the expression is more in the nature of conduct rather than in the nature of a statement of fact.

1. R. v. Ram, (1874) 23 WR Cr 35 (38) (per Jackson, J.).

12.183. Besides the spontaneity of the declaration, there is another consideration-the practical difficulty or impossibility of procuring the attendance of all the individuals who composed such crowd or aggregate of persons1.

1. Norton Evidence, 193, cited by Woodroffe.

12.184. Illustration (n).-

Illustration (n) is based on the leading English case on the subject of Due Box v. Beresford, (1810) 2 Cam Bell's Report 511 (512): 11 ITR 782. In that case, the plaintiff painted a picture, which he designated, "The Beauty and the Beast", and caused it to be exhibited for money in a public gallery, upon which crowds went to see it. The defendant went and hacked the picture to pieces.

The plaintiff sued to recover the full value of the picture as a work of art, and compensation for the loss of the exhibition. The defendant alleged that the picture was a scandalous libel upon his sister and her husband, and, in order to show whether the painting was made to represent these persons, the declarations of the spectators, made while looking at the picture in the exhibition, were admitted in evidence.

12.185. Markby's comment.-

Markby has, with regard to illustration (n) to section 32, observed1 that the case does not belong to section 32 at all. The evidence, he says, would be equally admissible, whether the by-standers could be called or not as witnesses. When the by-standers, on seeing a caricature, call out "there's X," and evidence is given of their words, what is relied on is, not their statements, but the fact of recognition: the fact, that is that the caricature at once recalls the person X to the minds of those who see it. This is Markby's comment.

1. Markby's Evidence, p. 34, quoted by Field.

12.186. With reference to this comment, we would like to state that though what the by-standers said may amount to recognition, yet their statements represent their impressions, and in that sense, the illustration is connected with section 32. What is referred to is a statement of opinion (though collective), out of court, and this situation had to be provided for expressly as an exception to hearsa.- which is the topic dealt with in section 32. No doubt, the statements or cries expressing recognition may also become relevant as part of the same1 transaction or on the question of identify.2 But their appropriateness under section 32 is not thereby affected.

1. See section 6.

2. Section 9.

12.187. Incidentally, we note that in the English cases, it does not seem to have been proved that the persons who make the observations could not be called1.

1. Cunningham's Evidence, 11th Edn., p. 95, cited by Field.

12.188. Doubtless, the difficulty, if not the impossibility, of ascertaining the names of all the persons who expressed their feelings or impressions, and of calling them all as witnesses, will, in the great majority of cases, be held to occasion an amount of delay or expense, which under the circumstances of the case, will appear to the court to be unreasonable1.

1. Field.

12.189. Change not needed.- The above discussion does not disclose any need for amending the clause.

12.190. Evidence given in previous proceeding where witness not available.-

Another exception to the rule against hearsay is to be found in section 33. That section makes the evidence given by a person as a witness in a previous judicial proceeding admissible, if the person who gave the evidence is not now available as a witness. This is the gist of this part of the section, not its exact terms. We have no comments on this part. We may note that we have referred to it earlier1, while discussing section 32. The admissibility of such evidence is subject to certain important conditions.

1. See discussion as to section 32, opening para.

12.191. Other conditions.-

The first condition requires that the parties must be the same. This is enacted on the grounds of reciprocity, because the right to use evidence, other than admissions, is co-extensive with the liability to be bound thereby. The adversary in the second suit had no power to offer evidence in his own favour in the first suit, and the evidence should not, therefore, be used against him.

12.192 and 12.193. The second condition requires an opportunity to cross-examine. It is the right of every litigant, unless he waives it, to have the opportunity of cross-examining witnesses, whose testimony is to be used against him: it follows that evidence given when the party never had the opportunity to cross-examine is not legally admissible as evidence for or against him, unless (in civil cases) he consents that it should be so used1.

1. (a) Gorachand v. Ram, (1968) 9 WR 587 (Cal); (b) Gregory v. Dooley, (1870) 14 WR 17 (Cal).

12.194. The principle involved in the third condition in requiring identity of the matter in issue; is to secure that in the former proceeding the parties were not without the opportunity of examining and cross-examining as to the very point upon which their evidence is adduced in the subsequent proceedings.1

1. (a) R. v. Rani, 1881 ILR 3 Mad 48 (52); (b) Bal v. Shriniwas, 1915 ILR 39 Bom 441.

12.195. Evidence not taken according to law.-

We may now consider a few points arising out of the section. While making evidence given by a witness in previous proceeding relevant, the section does not provide that the evidence should have been taken in accordance with law. This requirement has, however, been implied by judicial decisions. Thus, in a Patna Case1 a deposition sought to be put in evidence under section 33 was excluded, because-

(i) it was not read over in the manner required under section 360 of the Code of Criminal Procedure, 1898; and

(ii) the accused had no liberty to cross-examine the witness.

1. Emperor v. Phagunia, AIR 1926 Pat 58 (60).

12.196. The case related to a statement made in the court of the inquiring Magistrate, and was governed by section 350 read with section 360 of the Criminal Procedure Code, 1898, and section 208 read with Chapter 25 of that Code.

12.197. As has been held in a Calcutta case1, the intention underlying section 360 of the Criminal Procedure Code is that evidence should be recorded in such a manner that the accused can hear what is being read and take objection to it.

1. Dargahi v. Emperor, AIR 1925 Cal 831.

12.198. Change not necessary.-

The question is, whether it is necessary to add this requirement expressly in section 33. We have come to the conclusion that it is not necessary. Primarily, the section is aimed at "the evidence" i.e. the statemen.- and concentrates on the simple proposition that, in certain circumstances, the previous statement of a dead, etc. witness is admissible. The section need not be complicated by bringing in procedural matters as to the recording of the evidence.

12.199. Competent court.-

It has been held1 that a proceeding before a Judge or a Magistrate who has no jurisdiction is common non judice, and evidence given in such a proceeding cannot, on a retrial before a competent court, be used under section 33. This is also a principle well-recognised in respect of all proceedings, and need not be given statutory effect.

1. (a) Buta Singh v. Emperor, ILR 7 Lah 396: AIR 1926 Lah 582 (b) Rami Reddy, ILR 3 Mad 48 (51).

12.200. Heading of the deposition.-

It is well-known that the heading of a deposition given by a witness usually gives the name, parentage, age, residence and occupation of the witness. The question has arisen whether the particulars so given in the heading can be regarded as a part of the evidence so as to be capable of being used in subsequent judicial proceedings under this section. This question has received the attention of the Privy Council in one case1, where the description of the female witness, containing the name of her husband, which appeared at the head of the deposition, was excluded, for reasons which are stated as follows:-

"As regards the description of the witness in the heading of the deposition, their Lordships agree with the subordinate Judge that it is no part of the deposition proper2, that is, no part of evidence given by the witness in solemn affirmation. It may have been elicited by questions put by the Magistrate. It is just as likely that it was filled in by a subordinate official and on the paper when put into the hands of the Magistrate for him to take down the evidence of the witness. Again, it may have been read over to the witness by the Magistrate when the evidence of the witness was completed or the Magistrate may have contented himself with reading over the narrative embodying the evidence, which was all he was bound to do under the Act.

In these circumstances, even assuming that there was no slip or accidental omission in the heading of the document, and that there was no confusion between the two husbands in the mind of the person who took down the heading and assuming that the document is admissible , their Lordships are of the opinion that it is not entitled to any weight."

1. Macbulan v. Ahmad Hussain, 1904 ILR 26 All 108 (118) (PC).

2. Emphasis added.

12.201. Importance of oath.-

Now, it would have been noticed that the reasoning underlying the above decision is that the heading of the deposition is not on affirmation and, in fact, it does not represent any statement on a matter usually contained in the heading, there is no reason why such a statement cannot be taken as part of the evidence.

12.202. An analysis of the language of the section would also seem to yield the same result. What the section provides is that "evidence" given by a witness (in a judicial proceeding) is relevant. Now, "evidence" as defined in section 3, means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry. Though the age of a witness may be a matter of fact directly under an enquiry, it is indirectly a matter under enquiry, because a court would be very much interested in knowing these particulars; otherwise, the court would not record them at all. If the oath is administered before the particulars are recorded, they can be reasonably regarded as part of the "evidence". The answer, therefore, seems to depend on the time when the oath is administered.

12.203. No change needed on the question of heading of the definition.-

In the above position, no change is recommended in the language of the section on this point.

12.204. Section 33-proviso-"representatives in interest" (Amendment recommended).-

Under the proviso to section 33, one of the conditions to be satisfied before the section can be applied, is that "the proceeding was between the same parties or their representatives-in-interest". The expression "proceeding" in this part of the proviso, refers to the first proceeding, as has been settled be the Privy Council1. It is advisable to give effect to this interpretation, by adding the word "first" before the word "proceeding". This will make the language uniform with the second and the third conditions in the proviso, which use the specific expression "first proceeding".

1. Krishnayya v. Raja of Pittapur, ILR 57 Mad 11: AIR 1993 PC 202, Which reserved ILR 5 Mad 893: AIR Mad 994.

12.205. It may be noted that the proviso to section 33 inverts the requirement of English law, which requires that the parties to the second proceeding should legally represent the parties to the first proceeding or by their privies in estate. As observed by the Privy Council1 this inversion is not accidental. Instead of saying that the parties to the second proceeding should represent-in-interest the parties to the first proceeding, the proviso employs different language.

1. Krishnayya v. Rajah of Pittapur, ILR 57 Mad 11: AIR 1933 PC 202: 60 IA 336.

12.206. As the departure from the English law has been held to be deliberate by the Privy Council, the language of the proviso should be altered for bringing into line with the English rule, on this point.

12.207. Recommendation.-

In the result, the only change recommended is in the proviso, on the point discussed above.

12.208. Section 33 explained.-

The Explanation to section 33 is intended to do away with the objection that, in criminal cases, the State is the prosecutor1-2. The effect of the Explanation is that the deposition taken in criminal proceedings may be used in a civil suit, and vice versa, if the specified conditions are satisfied.

1. Soojan Bibee v. Achmut Ali, (1874) 14 Beng LR (Appx) 3.

2. Norton Evidence, 197, 198, cited by Woodroffe.

12.209. In this connection it is to be noted that the general theory of English law, which is followed in India also, is that a prosecution is always on behalf of the Crown or State, and, in that sense, the Crown or State is a party to every criminal trial or inquiry into an offence. It is on this theory that the Attorney-General's power to enter a nolle prosequit rests. Of course, public officials are not the only persons conducting prosecutions. But all prosecutions are theoretically on behalf of the State.

The general rule in England is that where the statute provides that there shall be no prosecution as to particular classes of offences created by statute without the consent of the Attorney-General or the Director of Public Prosecution1, then only the specified officer can sanction the prosecution. But, in the absence of such provisions, any private citizen can set the criminal law in motion2.

While the initiation of prosecution is governed by the rules stated above, the position that all prosecutions are theoretically at the suit of the Crown remains unaffected. In this respect, the position is different in Scotland where a private person cannot institute proceeding unless he has a personal and peculiar interest and gets the permission of the High Court-which is the reason why, when a 'private person sought to prosecute sellers of the book "Lady Chatterley's Lover", the court refused, saying "No private complainer can be the keeper of the public conscience"3. That the Crown is the nominal prosecutor becomes a matter of practical importance, since the Attorney-General can stop a criminal case by entering a nolle prosequit.4

Therefore, if the Explanation is :ead as meaning that a criminal trial or an inquiry into an offence is a proceeding between the State and the accused, it would be superfluous, since there has never been any doubt about that theory for a long time. The real purport of the Explanation is to deal with cases where the prosecution is conducted by a private person, who has instituted the criminal proceedings.

The Explanation is intended to obviate any argument to the effect that even in such a case the State is a party and not the private person mentioned above. Though the utility of the Explanation can be contemplated even in relation to cases where the later proceeding is also a criminal one, its more frequent application would be found where the later case is a civil one. For example, where a complainant who was permitted to conduct the prosecution of an accused per-son is now the plaintiff or defendant, and the accused in the previous prosecution is now the defendant or plaintiff, the Explanation would be useful. Of course, the other conditions mentioned in the section, including the proviso thereto, have to be satisfied in this case, as in every other case.

1. For example, section 2, Official Secrets Act, 1911.

2. Statement by Sir Hartley Shawcross, Attorney-General, in House of Commons Debates Vol. 483, 5th Series, Column 681, dated 29-1-1951.

3. The Times, 4th February 1961, cited in Jackson Machinery of Justice, (1972), p. 155, footnote 1.

4. R. v. Allen, (1862) 121 English Reports 929.

12.210. The point to be noted is that the system of prosecution that is followed, in general, is "'public prosecution". Though the Code of Criminal procedure1 has a provision which empowers the Court to permit a private person to conduct the prosecution, that provision is an exceptional one, and resort thereto is comparatively infrequent. Apart from that, even a private complainant, where he is permitted to conduct the case, is not ordinarily described as the "prosecutor". For this reason, the expression "prosecutor" is not very happy in this context2 It would, therefore, be desirable to substitute some other expression in its place.

1. Sections 301 and 302, Code of Criminal Procedure, 1973.

2. As to malicious prosecution, see Mohammad Amin v. Jogendra, AIR 1947 PC 108.

12.211. Moreover, the expression "prosecutor" is a vague one. We have, for example, to deride whether the benefit of the Explanation to section 33 should be confined to "complainants"-i.e. persons who make a "complaint" as defined in the Code of Criminal Procedure.- or whether it should also extend to other persons who set the law in motio.- e.g. the person who filed the First Information Report.

It is suggested that first informant, as such, has no locus standi in the Court. He is a witness, like any other person, even though he is a very important witness. He cannot be raised to the status of a party, for the purposes of section 33. The fact that he may, in certain cases1, be liable for malicious prosecution (civil liability) or for instituting false proceedings under section 211, I.P.C. (criminal liability), is immaterial for the present 'purpose. Even in a suit for malicious prosecution, a mere informant is not regarded as a prosecutor. He must have specifically named the present plaintiff in the previous prosecution.

1. See discussion in Gaya Prasad v. Bhagat Singh, 1908 ILR 30 All 525 (533) (PC) and case law reviewed in S.T. Sahib v. Hasan Gani, AIR 1957 Mad 640 (653).

12.212. Let us see the legislative usage on this point. Under the Code of Criminal Procedure1, evidence is produced by the "prosecution-a neutral word. Under the same Code, the2 absence of the complainant (in proceedings instituted upon complaint) on the day fixed for hearing, may lead to certain consequences. Further under the same Code3, in a summons case instituted upon a complaint, the complainant has, with the Magistrate's permission, power to withdraw the complaint.

These provisions should not be considered as material for the purposes of section 33. Under the same Code4, a Magistrate inquiring into and trying a case may permit the prosecution to be conducted by any person (other than certain excluded persons). But, so far as section 33 of the Evidence Act is concerned, even mere permission to conduct the prosecution should not suffice, and it is suggested that it is also necessary that that person must have instituted the proceedings5. Then only the expression "prosecutor" would be apt in the context of section 33.

1. Sections 244 and 254, Code of Criminal Procedure, 1973.

2. Sections 249 and 256, Code of Criminal Procedure, 1973.

3. Section 257, Code of Criminal Procedure, 1973.

4. Section 302(1), Code of Criminal Procedure, 1973.

5. Cf. section 211, I.P.C.

12.213. Conduct of prosecution.-

The position as to the conduct of prosecution may be briefly stated. Under the code1 of Criminal Procedure, where a private person instructs a pleader to prosecute a person in any court, the conduct of the prosecution is, nevertheless, by the Public Prosecutor or Assistant Public Prosecutor in charge of the case, and the Pleader has to act under his directions, although he is given power (with the permission of the Court), to submit written arguments after the close of the evidence.

This provision is also not material for the purposes of section 33, because the private pleader has to act subject to the control of the Public Prosecutor. It would, therefore, appear that the only material provision is that empowering the court to permit a private person to conduct the prosecution2 and, here also, so ;far as section 33 is concerned, it should be necessary that he instituted the proceedings3.

1. Section 301(2), Code of Criminal Procedure, 1973.

2. Section 302(1), Code of Criminal Procedure, 1973.

3. As to the expression 'institute' criminal proceedings, see section 211, I.P.C.

12.214. Recommendation to substitute "complainant".-

In our view, the test for the purpose of section 33 should be the fact that the private person has instituted the proceedings plus the fact that he has the potential capacity of conducting the prosecution. In view of what is stated above, we recommend that for the expression "prosecutor", in section 33, Explanation, suitable words indicating the above test should be substituted.

12.215. Redraft.-

A rough revised draft of section 33 is recommended below, in the light of what is stated above.

Revised section 33

33. Relevancy of certain evidence for proving in subsequent proceeding the truth of facts therein stated.-In a judicial proceeding before a court, evidence given by a witness-

(a) in a previous judicial proceeding, or

(b) in an earlier stage of the same judicial proceeding, or

(c) in any proceeding before any person authorised by law to take evidence.

is relevant for the purpose of proving 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-

(i) that the first proceeding was between the same parties or their representatives in interest;

(ii) that the adverse party in the first proceeding had the right and opportunity to cross-examine;

(iii) that the questions in issue were substantially the same in the first' as in the second proceeding.

Explanation.-A criminal trial or inquiry shall,

(a) Where the criminal proceedings are instituted by a private person, be deemed to be proceeding between that person and the accused within the meaning of this section, if that person is permitted by the court to conduct the prosecution under section 302 of the Code of Criminal Procedure, 1973;

(b) in other cases, be deemed to be a proceeding between the State and the accused.

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