Admissibility of Previous Depositions in subsequent proceedings

The general Rule of law of Evidence is that oral evidence must be direct that is to say a fact to be proved by oral evidence must be deposed before the court by one who has first hand knowledge of that fact. This Rule that oral evidence must be direct is incorporated u/s 60 of Evidence Act. Rule makes hearsay evidence or indirect evidence inadmissible. Basis of this Rule is legal necessity. When a person appears in court to depose about a fact of which he has direct or first hand or original knowledge, then (a) his statement can be recorded on oath (b) The party against whom he is deposing in court will have opportunity to cross examine him to test his veracity (c) Such witness if found to be deposing false can be subjected to penalty of deposing false. But if `Hearsay Evidence' being allowed than such witness could not be put on oath neither opposite party will have opportunity to cross examine his testimony because whatever he will say will be based on second hand information or hearsay fact Therefore law insists upon that oral evidence must be direct within the meaning of Section 60 of Act.

Section 33 is another exception to the Rule that oral evidence must be direct. Section 33 of Act provide:

"Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving it in subsequent judicial proceedings or in latter stage of the same judicial proceedings, the truth of fact 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 adverse party or 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 representatives in interest.

that 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 proceedings " So previous deposition of witness is relevant u/s 33 for proving the truth of fact stated therein when

(a) That deposition is made in a judicial proceeding or before a person authorised by law to take it.

(b) When proceedings is between the same parties or between their representative in interest.

(c) When the opposite party had right and opportunity to cross examine such witness

(d) When issue in question is substantially the same in both proceeding.

(e) When the witness is dead or cannot be found or is incapable of giving evidence or is kept out of way by adverse party or when whose presence cannot be obtained without delay and expense.