1. The petitioner is the accused in C. C. No. 9/72 before the Special Judge, Trivandrum. He was chargesheeted for having committed offences under S.5(2) read with S 5)(d) of the Prevention of Corruption Act (hereinafter referred to as the Act) and under S.161 of the Indian Penal Code. He was convicted and sentenced by the 2nd respondent Special Judge Trivandrum h the first instance in C. C. 2/67.

2. Against that conviction and sentence the the petitioner filed an appeal before this court as Criminal Appeal 352/69. The contention taken in the criminal appeal was that as per S.6(1)(c) of the Act, no court shall take cognizance of an offence punishable under S 161 of IPC, or under sub-section (2) or sub-section (3-A) of S.5 of the Act alleged to have been committed by a public servant except with the previous sanction of the authority competent to remove him from his office.

3. The petitioner is an employee under the Kerala State Electricity Board. The Kerala State Electricity Board had given sanction under S.6(1)(c) of the Act to prosecute the petitioner for the aforementioned offences. In the criminal appeal before this court the petitioner contended that the sanction given by the Electricity Board is not valid at all, and therefore the proceeding before the 2nd respondent, in which he was convicted was not a judicial proceedings and also without jurisdiction. It was also contended that the conviction and sentence was void. This court held in the criminal appeal that there had been no proper sanction to the prosecution as contemplated by the relevant statutory provision and that without such sanction the prosecution was unsustainable and void and on that basis the court set aside the conviction and sentence and acquitted the petitioner.

4. After acquittal of the petitioner the Board gave fresh sanction as contemplated in S.6 of the Act and the case has been charge sheeted afresh before the 2nd respondent for the same offences. The case was numbered as C C. 9/72.

5. During the trial a petition was filed by Legal Adviser to the Vigilance Division, Trivandrum praying that summons may be issued to the witness mentioned in the petition, viz., the Bench Clerk of that court to prove the deposition given by Pw2 in C.C. 2/67; since that witness is dead it was prayed that the deposition of the witness in the earlier proceedings be admitted in evidence under S.33 of the Evidence Act, by proving it through the Bench Clerk, who recorded that deposition.

6. The petitioner objected to the marking of the deposition. According to him that cannot be proved under S.33 of the Evidence Act, since the same had been taken in a proceedings which had been declared by this court as unsustainable and void on the ground that the case was taken cognizance of by the 2nd respondent without proper sanction. It was also contended by the petitioner that the deposition of the witness being recorded in a proceedings without jurisdiction is not evidence given in a judicial proceedings or before any person authorised by law to take it. Over-ruling the objections the 2nd respondent has passed an order which has been marked as Ext. P1 in this O. P. It is stated therein that a perusal of the judgment in criminal appeal will show that what the court had decided therein is only to the effect that there has been no proper sanction obtained for prosecuting the accused and therefore the prosecution was unsustainable in law. The learned Special Judge points out that the court had not held that there has been inherent absence of jurisdiction on the part of the court to conduct the trial of C. C. 2/67 and therefore it cannot be contended that the deposition taken therein is destitute of any legal effect. The learned Special Judge further proceeds to state that no doubt the evidence given in a judicial proceedings with inherent absence of jurisdiction cannot be admitted in evidence under S.33 of the Evidence Act. By the mere fact that the High Court had declared that the trial had been proceeded with without obtaining proper sanction to prosecute the accused and therefore the prosecution is unsustainable will not have the effect of making the deposition taken in that proceedings being treated as non est in law. Reliance was placed by the learned Special Judge on the decision of this court in Crl. R. P. 193/73. In that revision petition the question raised was whether a prior deposition of a witness recorded in a case which was subsequently found to have been initiated without jurisdiction can be used in a subsequent proceedings as valid prior statement either for the purpose of corroboration or for purpose of contradiction. The present petitioner was the revision petitioner there also. It would appear that a witness who was examined as pw. 5 in C.C. 2/67 was examined as Pw3 when the case came up again in C. C. 9/ 72. This time that witness was hostile to the prosecution. Therefore, his earlier statement, viz., bis deposition as Pw5 in C.C. 2/67 was sought to be used in the retrial. Taking advantage of the provision in S.145 of the Evidence Act the accused objected to the use of the deposition as a valid prior statement. This objection was over-ruled and the petitioner came to this court in revision. My learned brother justice Khalid held in that case that "the deposition of a witness does not disappear with the declaration by this court that the trial was vitiated for want of sanction. The deposition remains as a prior statement. This statement cannot be said to be non est. The only effect of the declaration by this court that the trial is vitiated for want of sanction is that the accused will not be visited with any adverse consequences by virtue of that trial." This court said that "it will be extending the principle to an extreme unacceptable extent to say that even a deposition taken in that case will have to be deemed to be non est. Justice Khalid relied on a decision of the Patna High Court in Ramakrishnan v. Emperor (AIR 1946 Patna 82) where a similar situation had arisen. A Division Bench of that High court held that there is no embargo on a previous statement being used in a subsequent proceeding although the previous statement was recorded in a proceeding which was subsequently held to be without jurisdiction.

7. In this O. P. Ex-P1 order is challenged. The petitioner points out the difference between S.33 and S.14 of the Evidence Act S.145 states that:

"A witness may be cross-examined as to previous statement made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

Previous statements "therein need not be statements made to a court or in a judicial proceedings; it may be statements made to any person The only thing is that it should be previous statements made in writing or reduced into writing and relevant to matters in question.

8. Under S.33 of the Evidence Act 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, 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 in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the acts which it states.

9. Therefore, the petitioner points out that the evidence should have been given in a judicial proceeding, which naturally could only be of a valid judicial proceeding or before any person authorised by law to take it. It is his contention that the earlier proceeding is vitiated on account of lack of proper sanction. Then it is neither valid judicial proceeding, nor could it be said that the proceeding was before any person authorised by law to take the evidence. Lack of prior sanction vitiates the whole proceeding and renders it void. Evidence taken there cannot be used for any purpose. It is as if no evidence has been given at all.

10. A preliminary objection is taken in the nutter by the learned Government Pleader on the ground.that the petition is not maintainable at all. It is contended that the petitioner cannot have recourse to Art.226 of the Constitution in the light of the fact that the order is by a Criminal Court as such and the proper remedy that the petitioner could have would either be by taking up the matter in revision to this court or by invoking the inherent jurisdiction of this court or by questioning the validity of the procedure in a criminal appeal that could be taken finally from the decision of the Special Judge.

10. In this case a final order on the objection raised by the petitioner has been passed by the learned Special Judge. Under S.397 (2), Criminal Procedure Code, 1973, no revision will lie from that order. That provision is to the effect that:

"The powers of revision conferred by sub-sec. (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."

I do not find anything wrong in the petitioner questioning the validity of the order passed at this stage itself without waiting for the final decision in the case, and it is only proper that the matter is cleared at this stage itself, whether the evidence taken in the earlier proceedings could be introduced into this proceeding under S.33 of the Evidence Act It is in the interests of both the prosecution as well as the defence that determination of that question is made now instead of postponing the same to the final stage of the trial. The fact that under the inherent powers of this court, this court could make such orders as may be necessary to prevent the abuse of the process of the court does not take away the right of the party to approach this court under Art.227. At this stage it is only under Art.227 that the petitioner could have approached this court in the absence of a remedy by way of a revision under S.397 Cr. P. C. I do not think that my decision in Varkey v. Executive First Class Magistrate, Alleppey (ILR.1975-2 Ker 368) would in any way prevent the petitioner from approaching this court in this matter under Art.227. What I stated therein was only to this effect:

"The power of superintendence is a power of a known and well recognised character and should be exercised on those judicial principles which give it its character. In general words the High courts power of superintendence is a power to keep subordinate courts within the bounds of their authority The power is not to be exercised merely for the purpose of correcting errors of law or of fact. High Court cannot assume appellate powers to correct every mistake of law. And unless injustice has been caused to a person it will not be proper for this court to interfere under Art.227 of the Constitution."

11. I do not know how the dictum laid down therein could in any way affect this case. If the evidence taken in the earlier proceedings be introduced into the present proceedings under S.33 to allow such evidence to go in would vitiate the trial in a fundamental manner and in such a case it cannot be said that no injustice would be done to the petitioner. Therefore, I do not find any merit in the preliminary objection raised.

12. The next question is whether the evidence taken in the earlier proceedings could be introduced into the present proceedings under S.33 of the Evidence Act. Mr. George Varghese Kannanthanam, learned counsel for the petitioner relied on the following decisions in support of his contention that the deposition in the earlier proceedings being recorded without jurisdiction is not evidence given in a judicial proceeding, or before any person authorised by law to take it.

13. In Sankappa Rai v. Keraga Pujary (AIR. 1931 Mad. 575) [LQ/MadHC/1930/227] the matter arose under a suit relating to the property of a family of Billavars of South (Canara District who follow the Allyasantana Law. In that case it would appear that the trial of the suit had begun before he District Munsiff and one of the defendants - defendant No. 20 was examined as Dw.1. In the course of her deposition she made certain statements in regard to the relationship of the plaintiffs. After this evidence was taken the Munsiff Court returned the plaint on the ground that the value of the subject matter was above its pecuniary jurisdiction and the plaint was accordingly filed in the court of the Subordinate Judge. The statement made by dw.1 in her evidence before the District Munsiff was held to be admissible by the Subordinate Judge under S.33 of the Evidence Act. This dw 1 had died before she could be examined again. The High Court held in that case that on the general question of the effect of a lack of jurisdiction, a proceeding before a judge or Magistrate who has no jurisdiction in the matter is not a judicial proceeding and the evidence of a witness given in such a proceeding cannot be used under S.33 of the Evidence Act. The Madras High Court referred to the decision of the Calcutta High court in Rajalakshmee Dasee v. Katyayani Dassee (ILR. 38 Cal. 639) [LQ/CalHC/1910/423] for the general proposition that if a court has no jurisdiction over the subject matter of the legislation its proceedings are mere nullities.

14. In Sudhindra Nath v. State (AIR. 1953 Cal. 339) [LQ/CalHC/1952/79] a Division Bench of the Calcutta High court consisting of Harries, C. J. and Das Gupta, J. held that for attracting S.33 of the Evidence Act the previous deposition must be in judicial proceeding and proceedings without jurisdiction are not judicial proceedings. The court held that deposition taken in such proceeding is not by person authorised by law.

15. In Buta Singh v. Crown (7 Lahore 396), the appellant in the case was tried twice on a charge of murder. The first trial was set aside as being without jurisdiction. In the second trial the Sessions Judge acting ostensibly under S 33, Evidence Act admitted in evidence the statement of certain witnesses made before the Sessions Judge during the first trial and the statement of one witness was made in the first committal proceedings. The Lahore High court held that a proceeding before a judge or a Magistrate who had no jurisdiction is not a judicial proceeding and that the evidence of witnesses given in such a proceeding could not be used under S.33 of the Evidence Act on a retrial before a competent court. In the course of their judgment their Lordships observed as follows:

"The first trial was not a judicial proceeding as there is a final order by this court ruling it to have been without jurisdiction. It was held in Rami Reddi in re (3 Mad 48) [LQ/MadHC/1973/386] that evidence which was in a proceeding subsequently pronounced to be one coram non judice was not admissible and could not be used under S.33, Evidence Act on a retrial before a competent court."

Referring to the Lahore decision, the Division Bench of the Calcutta High Court in the case I just referred AIR 1953 Cal. 339 [LQ/CalHC/1952/79] said:

"The matter seems to us to be beyond all question. If the proceedings had taken place without jurisdiction, it cannot by any means be said that the evidence given in those proceedings was given in a judicial proceeding. Such proceeding, on the authorities which I have cited, can never be a judicial proceeding. The next question is can such evidence of the complainant given in the two previous proceedings be admitted on the ground that it was given before a person authorised by law to take it.

It seems to me that when it is said that a person must be authorised by law to take it. it means that the person must be authorised to take that particular deposition or the particular case in which the deposition has been given. As I have said the entire trial had been declared by this court to have been without jurisdiction If that is so, it cannot be said that the Magistrate who took deposition in such a trial was a Magistrate who was authorised by law to take that deposition. Such a person must be, as I have indicated, a person authorised to take that particular deposition. But the effect of the decision of this court in those two revision cases, is that he was not authorised to take those depositions the trials having been declared to be without jurisdiction.

In the premises I have come to the conclusion that the evidence which has been admitted under S.33, Evidence Act could not have been admitted under the said section and the said evidence has been wrongly admitted by the learned trying Magistrate."

16. In the light of these decisions I have no hesitation in holding that the order impugned is this proceeding is clearly wrong The learned Special Judge is wrong in staling that the deposition taken in the earlier proceedings could be used in the present trial under S.33 of the Evidence Act. Certainly in appropriate cases and when necessity arises such evidence could be used as previous statement under S.145, Evidence Act. But that does not mean that earlier deposition could be used as evidence under S.33 of the Evidence Act.

17. I allow this O.P., quash Ex-P1 and direct that the Special Judge shall not let into evidence depositions in the earlier proceeding, C. C. 2/67 under S.33 of the Evidence Act. In the circumstances of the case I make no order as to costs.

Issue carbon copy of judgment to the petitioner on payment of requisite charges and to the Government Pleader free of charges.

Allowed.