Atma Ram & Ors. vs State of Rajasthan

317 are such express exceptions provided in the Cr.P.C. In the circumstances mentioned in Sections 299 and 317, the Courts would be justified in recording evidence in the absence of the accused. Under its latter part, Section 273 also provides for a situation in which evidence could be recorded in the absence of the accused, when it says “when his personal attendance is dispensed with, in the presence of his pleader”. In the present case, there was no dispensation and yet the evidence was recorded without ensuring the presence of the accused. The High Court was, therefore, absolutely right in concluding that Section 273 stood violated in the present matter and that there was an infringement of the salutary principle under Section 273. [Para 18][730-F-G; 731-B-C]

2. Chapter XXXV of the Cr.P.C. deals with “Irregular Proceedings”, and Section 461 stipulates certain infringements or irregularities which vitiate proceedings. Barring those stipulated in Section 461, the thrust of the Chapter is that any infringement or irregularity would not vitiate the proceedings unless, as a result of such infringement or irregularity, great prejudice had occasioned to the accused. The right of the accused to watch the prosecution witness is a valuable right and there was an infringement of such right in the present case. In the present matter, it was not the direction of the High Court to read the entire evidence on the earlier occasion as evidence in the de novo trial. The direction is to re-examine those witnesses who were not examined in the presence of the appellants. The direction now ensures the presence of the appellants in the Court, so that they have every opportunity to watch the witnesses deposing in the trial and cross-examine said witnesses. Since these basic requirements would be scrupulously observed and complied with, there is no prejudice at all. [Paras 19 and 20] [731-F-G; 731-C-D; 733-D-E]

Jayendra Vishnu Thakur v. State of Maharashtra and Anr. (2009) 7 SCC 104:[2009] 8 SCR 591

– distinguished.

3. The proceedings under Chapter XXVIII of Cr.P.C. which deals with “submission of death sentences for confirmation” is a proceeding in continuation of the trial. The provisions in this Chapter thus entitle the High Court to direct further enquiry or to take additional evidence and the High Court may, in a given case, even acquit the accused person. The scope of the chapter is wider. Chapter XXIX of Cr.P.C. deals with “Appeals”. The powers of Appellate Court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of Cr.P.C. If the power can go to the extent of ordering a complete re-trial, the exercise of power to a lesser extent namely ordering de novo examination of twelve witnesses with further directions as the High Court has imposed in the present matter, was certainly within the powers of the High Court. There is, thus, no infraction or jurisdictional error on the part of the High Court. [Para 22][736-F-H; 737-A-B]

4. It is true that an order of retrial of a criminal case is not to be taken resort to easily and must be made in exceptional cases. The order passed by the High Court in the present matter was not to enable the Prosecutor to rectify the defects or infirmities in the evidence or to enable him to lead evidence which he had not cared to lead on the earlier occasion. The evidence in the form of testimony of those twelve witnesses was led and those witnesses were cross-examined. There was no infirmity except the one that the evidence was not led in the presence of the appellants. The remedy proposed was only to rectify such infirmity, and not to enable the Prosecutor to rectify defects in the evidence. [Para 23 and 24][737-B-C; 738-A-C]

5. The matter should also be considered from the stand point and perspective of the victims. It is certainly in the societal interest that the guilty must be punished and at the same time the procedural requirements which ensure fairness in trial must be adhered to. If there was an infraction, which otherwise does not vitiate the trial by itself, the attempt must be to remedy the situation to the extent possible, so that the interests of the accused as well as societal interest are adequately safeguarded. The very same witnesses were directed to be de novo examined which would ensure that the interest of the prosecution is subserved and at the same time the accused will have every right and opportunity to watch the witnesses deposing against them, watch their demeanor and instruct their counsel properly so that said witnesses can be effectively cross-examined. In the process, the interest of the accused would also stand protected. If it were held that the proceedings stood vitiated and, therefore, the High Court was powerless to order de novo examination of the concerned witnesses, it would result in great miscarriage of justice. The persons who are accused of committing four murders would not effectively be tried. The evidence against them would not be read for a technical infraction resulting in great miscarriage. Viewed thus, the order and directions passed by the High Court completely ensure that a fair procedure is adopted and the depositions of the witnesses, after due distillation from their crossexamination can be read in evidence. [Para 25][738-C-G]

State of Maharashtra and another v. Praful B. Desai (2003) 4 SCC 601 : [2003] 3 SCR 244 ; Mahendra Chawla v. Union of India (2018) 15 SCALE 497 ; Sakshi v. Union of India (2004) 5 SCC 518 : [2004] 2 Suppl. SCR 723 – relied on.

State of Madhya Pradesh v. Bhooraji (2001) 7 SCC

679 : [2001] 2 Suppl. SCR 128 ; Pandit Ukha Kolhe v. The State of Maharashtra [1964] 1 SCR 926 – referred to.

Harvard Law Review Vol. 131:2117 – referred to.