CRP 297/2006 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) The petitioners, who are the plaintiffs in Title Suit No.299/1996 pending in the Court of the learned Civil Judge (Junior Division) No.2 at Guwahati (now Munsif f No.2) have filed the present petition challenging the order dated 15.3.2005 p assed by the said Court rejecting the application filed by them for accepting t he deposition of one Keshab Barman, recorded in a proceeding initiated under Sec tion 145 CrPC, in the suit. 2. The suit has been instituted by the present petitioners against the pres ent opposite party for declaration of right, title and interest and recovery of khas possession over the Schedule-’A’ land, for declaration of possessory right and interest and recovery of khas possession over the Schedule-’B’ land and also for permanent injunction. In the said suit, the evidence in affidavit of one Keshab Barman was filed on 22.9.2003 but before he was cross-examined by the def endant/opposite party unfortunately he expired on 22.9.2003. The petitioner/pla intiffs then filed an application before the learned trial Court for accepting t he evidence of Keshab Barman recorded in the proceeding initiated by the petiti oners under Section 145 CrPC before the learned Executive Magistrate, Guwahati in Case No.53m/2003, against the present opposite party Khira Kanta Gohain and a nother. The said application was objected to by the opposite party by filing an objection. The learned trial Court, thereafter, upon hearing the learned counse l for the parties vide order dated 15.3.2005, rejected the application on the gr ound that the ingredients of Section 33 of the Evidence Act have not been fulfil led inasmuch as :- i) the area of land involved in the 145 proceeding as well as in the suit are different; ii) the issue in 145 proceeding being the issue relating to the possession a nd in the suit being declaration of right, title and interest and recovery of kh as possession, these are not the same; and iii) the said witness was not cross-examined on the question of right, title and interest as claimed by the plaintiffs. By the said order, the learned trial Court expunged the evidence of affidavit of the said witness Keshab Barman (P.W.2). 3. I have heard Mr. B.K. Goswami, learned Sr. counsel for the petitioners a nd Mr. Rajdeep Saikia, learned counsel appearing on behalf of the opposite party . 4. It has been contended by Mr. Goswami, learned Sr. counsel for the petiti oners that since both the proceedings being one under Section 145 CrPC and th e suit being Title Suit No.299/1996 between the same parties and Keshab Barman, who was examined in the 145 proceeding, was in fact, cross-examined by the prese nt opposite party, who was the second party in the said 145 CrPC proceeding and in the suit, a decree for possession in respect of the Schedule-’B’ land on decl aration of right, title and interest, having been prayed for, the question in i ssue in both the proceedings are substantially the same and hence, the leaned C ourt below ought not to have rejected the application filed by the petitioners by holding that the requirements of Section 33 of the Evidence Act are not fulfi lled. Mr. Goswami, learned Sr. counsel, referring to the statements made in the plaint as well as various orders passed in the 145CrPC proceeding, the records o f which were before the learned trial Court on being called at the instance of t he petitioners, has submitted that the question in issue in both the proceeding s are substantially same and, therefore, the learned Court below committed ille gality in rejecting the application on the ground that 145 CrPC proceeding rela tes to possession and the suit is filed for declaration of right, title and in terest. 5. Mr. Saikia, learned counsel appearing on behalf of the opposite party s upporting the order impugned in the present application, has submitted that sinc e Keshab Barman was not cross- examined on the question of right, title and inte rest and decree for which is sought by the plaintiff-petitioners, the learned Co urt below has rightly rejected the application by holding that the requirements of Section 33 of the Evidence Act are not fulfilled. It has been submitted by t he learned counsel for the petitioners that before deciding as to whether the ev idence of Keshab Barman recorded under Section 145 CrPC proceeding is relevant i n the subsequent proceeding in view of Section 33 of the Evidence Act, such ev idence has to be tendered in the subsequent proceeding, but in the instant case, the same has not been done by the plaintiff-petitioners at all though the reco rds of 145 CrPC proceeding have been called for and received by the leaned trial Court. 6. Section 33 of the Indian Evidence Act provides that the evidence given b y 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 procee ding, or in a later stage of the same judicial proceeding, the truth of the fac ts 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 - i) the proceeding was between the same parties or their repre sentatives in interest; ii) the adverse party in the first proceeding had the right and opportunity to cross-examine; and iii) the questions in issue were substantially the same in the first as in th e second proceeding. On fulfillment of all the above 3 conditions, the provisions of Section 33 of th e Indian Evidence Act, in a given case, would be applicable and not otherwise. The explanation in Section 33 of the Indian Evidence Act provides that a crimina l trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of the said Section. 7. Therefore, a proceeding under Section 145 CrPC being an inquiry under th e provisions of the Criminal Procedure Code is a judicial proceeding within the meaning of Section 33 of the Indian Evidence Act. 8. In the instant case, though the records of the 145 CrPC proceeding bein g Case No.53m/2003 were sought for and received by the learned trial Court, in which proceeding the deposition of Keshab Barman was recorded, the said 145 CrP C proceeding in its entirety or the evidence adduced by Keshab Barman has not be en tendered in evidence in the suit by any witness before the trial Court. The question of relevancy of such evidence of Keshab Barman within the meaning of S ection 33 of the Indian Evidence Act shall come only when such evidence recorded in the previous judicial proceeding is tendered in the subsequent proceeding. In the instant case, there is, however, no dispute that Keshab Barman filed his examination-in-chief by way of affidavit in the suit but unfortunately expired before his cross examination. 9. The learned Court below even before the stage has come, has passed the order impugned in the present petition. 10. In view of the aforesaid position, I set aside the impugned order passe d by the learned trial Court. The plaintiffs would be at liberty to tender the evidence of Keshab Barman recorded in the 145 CrPC proceeding, in the suit thro ugh the plaintiffs or any other witness. Such witness shall, however, be allowe d to be cross-examined by the defendant. After such tendering, the Court shall a t the proper stage decide about the relevancy or otherwise of such evidence by keeping in mind the requirements of Section 33 of the Evidence Act. 11. The petition stands accordingly disposed of. No costs.