ATMA RAM & ORS. VS. STATE OF RAJASTHAN

Whether, the entire trial should be declared vitiated; or that the matter should be remanded to the trial court for recording the statements of these witnesses afresh by exercising powers under Section 391 Cr.P.C. or that the impugned judgment should be set aside and the denovo trial directed by exercising powers under Section 386(b) Cr.P.C. – as the recording of evidence was taken place in the absence of accused ? 

[High court observed that despite of protest by the counsel of Accused , the trial court proceeded to record the evidence in the absence of Accused.]

The High Court, therefore, quashed and set aside the judgment dated 03.11.2017 passed by the Trial Court in Sessions Case No.14/2014 and directed as under:-

“… …It is hereby directed that trial court shall

summon and record the statements of the witnesses

P.W.1 Chandu Ram, P.W.2 Chandrakala, P.W.3

Surendra Singh, P.W.4 Dharam Pal, P.W.12 Vikrant

Sharma, P.W.13 Prahlad, P.W. 14 Ram Kumar, P.W.15

Sushila, P.W.17 Dr. Arun Tungariya, P.W. 18 Ram

Pratap, P.W.20 Sahab Singh and P.W.23 Ramesh

Kumar afresh after securing presence of the accused

in the court. Upon remand, the trial court shall

conduct the proceedings on a day to day basis and

shall, after recording the statements of the witnesses

afresh in the above terms, re-examine the accused

under Section 313 Cr.P.C.; provide them a

justifiable/proper opportunity of leading defence and

decide the case afresh and as per law within four

months from the date of receipt of copy of this

judgment.”

Apex court held that

We must also consider the matter from the stand point and perspective of the victims as suggested by the learned Amicus Curiae. Four persons of a family were done to death. 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.  On the other hand, if we were to accept the submission 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 cross-examination can be read in evidence. 26. We, therefore, see no reason to interfere with the order passed and the directions issued by the High Court in the present matter. We affirm the view taken by the High Court and dismiss these appeals.

CRIMINAL APPEAL NOS.656-657 of 2019 (@SLP (CRL) Nos.809-810 of 2019
ATMA RAM & ORS. VS. STATE OF RAJASTHAN
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.656-657 OF 2019
(Arising out of Special Leave Petition (Criminal) No.809-810 of 2019)
ATMA RAM AND ORS. …Appellants
VERSUS
STATE OF RAJASTHAN …Respondent
J U D G M E N T
Uday Umesh Lalit, J.

  1. Leave granted.
  2. These appeals challenge the decision dated 03.12.2018 passed by the
    High Court of Judicature of Rajasthan at Jodhpur in D.B. Criminal Death
    Reference No.2 of 2017 and D.B. Criminal Appeal No.33 of 2018.
  3. FIR No.493 was registered with Police Station Bhadara, District
    Hanumangarh on 13.10.2013 in respect of offences punishable under Sections
    302, 307, 452, 447, 323, 147, 148 and 149 IPC pursuant to reporting by one
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    Kailash. It was stated that seven named persons including present four
    appellants and some other unknown persons had come to the agricultural field
    of the informant while harvesting operations were going on and had opened
    an assault. As a result, father of the informant named Bhanwarlal and brother
    of the informant named Pankaj died on the spot while the informant suffered
    injuries. It was further alleged that the same assembly, thereafter, went to the
    village and assaulted inmates of the house in which his grandfather named
    Momanram died. Later, the informant Kailash also succumbed to his injuries.
  4. After due investigation, charge-sheet was filed against the appellants
    namely Atmaram, Omprakash, Leeladhar and Shravan Kumar while others
    were reported to be absconding. The trial was conducted in the Court of
    Additional Sessions Judge, Bhadara, District Hanumangarh. It appears that at
    the stage of recording of evidence, the appellants who were then in judicial
    custody were not produced in court. The order dated 28.10.2014 passed by
    the Trial Court recorded the objection of the Advocate for the appellants. The
    examination-in-chief of PW1-Chanduram and PW2-Chandrakala was
    undertaken without the appellants being present in Court and the crossexamination was deferred. The order recorded:-
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    “In Evidence PW1 Chanduram & PW2
    Chandrakala, Chief Examination was recorded.
    Advocate for accused sought time for Cross
    Examination. Therefore, statements of witnesses were
    kept reserved. Witnesses PW1 & PW2 are to be
    present for Cross Examination on 28.11.2014 and
    Witness no. 12, 13 and 143 are to be issued summons
    to remain present on 29.11.2014. For recording
    evidence be present on 28.11.2014, till then Judicial
    Custody of Accused Atmaram, Om Prakash,
    Leeladhar and Shravan is extended.”
  5. Similarly, following 10 witnesses were also examined in Court on
    dates mentioned against their names, without ensuring the presence of the
    appellants in Court.
    PW3 Surendra Singh 13.2.2015
    PW4 Dharam Pal 13.2.2015
    PW 12 Vikrant Sharma 13.8.2015
    PW 13 Prahlad 3.9.2015
    PW 14 Ram Kumar 9.10.2015
    PW 15 Sushila 9.10.2015, 5.11.2015
    PW 17 Dr. Arun Tungariya 8.3.2016
    PW 18 Ram Pratap 12.5.2016, 20.6.2016, 14.2.2017
    PW 20 Sahab Singh 22.11.2016
    PW 23 Ramesh Kumar 14.2.2017
  6. The Trial Court by its judgment and order dated 03.11.2017 found that
    the prosecution had proved the case against the appellants beyond reasonable
    doubt and convicted the appellants for the offences punishable under Sections
    147, 148, 452, 447, 302 read with Section 149 and Section 323 read with
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    Section 149 IPC. The matter was then heard on sentence. After hearing the
    Public Prosecutor and Advocates for the complainant, as well as the
    appellants, the Trial Court imposed death sentence upon the appellants,
    subject to confirmation by the High Court. Consequently, the matter stood
    referred to the High Court in D.B. Criminal Death Reference No.2 of 2017.
    The appellants also filed D.B. Criminal Appeal No.33 of 2018, which was
    heard along with the Death Reference case.
  7. It was submitted inter alia on behalf of the appellants that the entire
    trial was vitiated because the Trial Court had recorded statements of as many
    as twelve witnesses without ensuring presence of the appellants in Court.
    Relying on Section 273 of the Code of Criminal Procedure, 1973 (‘the Code’,
    for short), it was submitted that the procedure adopted by the Trial Court of
    recording statements of the witnesses, without ensuring the presence of the
    appellants, amounted to an incurable illegality and as such the trial ought to be
    declared to be vitiated and the appellants be acquitted of the charges levelled
    against them. While opposing these submissions, the Prosecutor contended
    that not only did the Advocate for the appellants conduct extensive crossexamination of the witnesses but no objection was raised at any time during
    such cross examination. Further, no plea was raised before the Trial Court
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    during final arguments that the appellants were, in any way, prejudiced on
    account of their absence in the proceedings.
  8. The High Court observed that despite “pertinent objection of the
    defence counsel (albeit raised at the initial stages)”, the Trial Court had
    proceeded to record the statements of twelve witnesses in the absence of the
    appellants. In the light of the facts on record, the question which arose for
    consideration was then framed by the High Court as under:-
    “… …the significant question which arises for the
    Court’s consideration is as to whether, the entire trial
    should be declared vitiated; or that the matter should
    be remanded to the trial court for recording the
    statements of these witnesses afresh by exercising
    powers under Section 391 Cr.P.C. or that the
    impugned judgment should be set aside and the denovo trial directed by exercising powers under Section
    386(b) Cr.P.C.”
  9. After hearing both sides, the High Court considered cases of State of
    Madhya Pradesh vs. Bhooraji1
    , Pandit Ukha Kolhe vs. The State of
    Maharashtra2
    and Jayendra Vishnu Thakur vs. State of Maharashtra and
    Anr3
    . The High Court then concluded:-
    “In the case of Pandit Ukha Kolhe, the Hon’ble
    Supreme Court by majority view held that the
    prosecution should be given opportunity to lead
    1
    (2001) 7 SCC 679
    2
    (1964) 1 SCR 926
    3
    (2009) 7 SCC 104
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    evidence on the matters indicated in the course of the
    judgment; the accused be examined afresh under
    Section 342 Cr.P.C. and the appeal be decided afresh.
    Thus, in this case as well, the Supreme Court directed
    that fresh evidence should be taken on matters of
    significance even at the appellate stage.
    Thus, none of the precedents cited by the defence
    counsel lays down a straightjacket formula that a denovo trial cannot be directed in any condition. As a
    matter of fact, if any such view is taken, then the
    scope and operation of Section 386(b) Cr.P.C. would
    be rendered redundant.
    In view of the discussion made hereinabove and
    looking to the glaring facts of the case at hand, we feel
    that in order to do complete justice to the accused as
    well as to the victims, the entire case cannot be
    thrown out by holding the proceedings to be vitiated
    on account of the mistakes committed by the trial
    Judge or the prison authorities concerned. A fresh
    trial/de-novo has to be ordered by directing the trial
    court to lawfully re-record statements of the witnesses
    indicated above whose evidence was recorded in the
    first round without ensuring presence of the accused
    in the court.
    During the course of arguments, Shri Moti Singh,
    Advocate representing the appellants agreed that in
    case, the matter is remanded for fresh trial, no
    direction is required to be given to record the
    statements of the remaining witnesses afresh because
    when their testimony was recorded, the accused were
    kept present in the course proceedings.”
  10. The High Court, therefore, quashed and set aside the judgment dated
    03.11.2017 passed by the Trial Court in Sessions Case No.14/2014 and
    directed as under:-
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    “… …It is hereby directed that trial court shall
    summon and record the statements of the witnesses
    P.W.1 Chandu Ram, P.W.2 Chandrakala, P.W.3
    Surendra Singh, P.W.4 Dharam Pal, P.W.12 Vikrant
    Sharma, P.W.13 Prahlad, P.W. 14 Ram Kumar, P.W.15
    Sushila, P.W.17 Dr. Arun Tungariya, P.W. 18 Ram
    Pratap, P.W.20 Sahab Singh and P.W.23 Ramesh
    Kumar afresh after securing presence of the accused
    in the court. Upon remand, the trial court shall
    conduct the proceedings on a day to day basis and
    shall, after recording the statements of the witnesses
    afresh in the above terms, re-examine the accused
    under Section 313 Cr.P.C.; provide them a
    justifiable/proper opportunity of leading defence and
    decide the case afresh and as per law within four
    months from the date of receipt of copy of this
    judgment.”
  11. The decision of the High Court is presently under challenge.
    Considering the nature of controversy involved and the questions raised in the
    matter, this Court appointed Shri Ranjit Kumar, learned Senior Advocate as
    Amicus Curiae to assist the Court. In the meantime, as a result of the order
    passed by the High Court, the Trial Court had proceeded with de novo trial as
    directed and those twelve witnesses were re-examined. After hearing both
    sides the matter was reserved for judgment. Therefore, on 07.03.2019 this
    Court directed the Trial Court not to pronounce the judgment till further
    orders. The matter was, thereafter, heard by this Court. Mr. Sanjay Hegde,
    learned Senior Advocate appeared on behalf of the appellants, Dr. Manish
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    Singhvi, learned Senior Advocate appeared on behalf of the State and Mr.
    Ranjit Kumar, learned Senior Advocate appeared as Amicus Curiae at the
    request of the Court. After the oral submissions, the parties also filed their
    written submissions.
  12. Mr. Sanjay Hegde, learned Senior Advocate for the appellants
    submitted:-
    A) Section 273 of the Code opens with expression, “Except
    as otherwise expressly provided… …” and the only exceptions
    to the application of Section 273 are those expressly provided
    i.e. in Sections 299 and 317 of the Code. Subject to these
    exceptions, Section 273 Cr.P.C. is absolutely mandatory.
    B) The right of an accused to watch the prosecution
    witnesses deposing before a Court is a valuable right and
    infringement of such a right is gravely prejudicial.
    C) A re-trial wipes out from the record the earlier
    proceedings and affords the Prosecutor an opportunity to rectify
    the infirmities in the earlier proceedings. Therefore, it can be
    ordered in very rare circumstances and certainly not to take
    away the advantage ensuing to the accused.
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    D) In any case, no partial re-trial can be ordered.
  13. Dr. Manish Singhvi, learned Senior Advocate appearing for the State
    submitted:-
    A) The conclusion of the High Court that Section 273 is
    mandatory was accepted by the State and no appeal was
    preferred. Proceeding on such premise, the question was
    whether the trial was vitiated or the error could be rectified.
    Relying on Section 279 of the Code under which evidence has
    to be given in a language understood by the accused and
    infraction thereof was not found to be of such magnitude so as
    to vitiate the proceedings4
    , he submitted that infraction of
    Section 273 would also not vitiate the trial.
    B) Sections 460 to 465 of the Code stipulate remedies with
    respect to breaches of provisions of the Code and resultant
    effect. Contravention of Section 273 is not considered to be
    breach of such magnitude which ought to result in vitiation of
    proceedings.
    4
    Shiv Narayan Kabira vs. State of Madras 1967 (1) SCR 138
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    C) Relying on articles from Harvard Law Review5
    and
    Columbia Law Review6
    it was submitted that theory of
    Harmless Error in criminal matters is firmly embedded in
    criminal jurisprudence and error in the present matter is one
    which comes within such category.
    D) The contravention of Section 273 was remedied by the
    order of re-trial so that there should not be any prejudice to the
    accused. The order directing de novo examination of twelve
    witnesses and re-trial to that extent was just and proper.
  14. Shri Ranjit Kumar, learned Senior Advocate and Amicus Curiae relied
    upon decisions of this Court in State of Maharashtra and another vs.
    Praful B. Desai7
    , Sakshi and others vs. Union of India8
    , Mahendra
    Chawla vs. Union of India9
    and various provisions of the Code to submit:-
    A) The provisions of Section 273 are mandatory in nature only
    to the extent that the evidence taken in the course of the trial
    ought to be in the presence of the accused or when his personal
    5 Harvard Law Review Vol. 131:2117
    6 Columbia Law Review Online – Vol.118 October 4, 2018 Pages 118-34
    7
    (2003) 4 SCC 601
    8
    (2004) 5 SCC 518
    9
    (2018) 15 SCALE 497
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    attendance is dispensed with, in the presence of his pleader; and
    that the physical presence of the accused is not mandatory.
    B) Elaborating further, it was submitted that non-compliance of
    the provisions of Section 273 is not an irregularity which would
    vitiate the criminal trial completely, as the irregularity was
    curable.
    C) Under Sections 366 to 371 of the Code dealing with
    “Submission of Death Sentences for Confirmation” and
    Sections 372 to 394 dealing with “Appeals”, the High Court
    was empowered to direct re-trial and record additional evidence
    or direct further enquiry.
    D) The provisions of Chapter XXVIII dealing with Death
    References are wider/larger in import as compared to the
    powers under Chapter XXIX dealing with appeals and the view
    taken by the High Court was supported more strongly by the
    provisions of Chapter XXVIII of the Code.
    E) The criminal jurisprudence also recognizes rights of
    victims in a criminal trial. In the present case, four male
    members of the family were killed, and the view taken by the
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    High Court was an extremely balanced view which ensured that
    there was no failure or miscarriage of justice for the victims as
    well as the accused.
  15. The cases cited by the learned Amicus Curiae dealt with issues
    whether recording of evidence by video conferencing satisfied the mandate
    of Section 273 of the Code.
    A) In State of Maharashtra v. Dr. Praful B. Desai10 it was observed:
    “9. It was submitted on behalf of the respondents, that
    the procedure governing a criminal trial is crucial to
    the basic right of the accused under Articles 14 and 21
    of the Constitution of India. It was submitted that the
    procedure for trial of a criminal case is expressly laid
    down, in India, in the Code of Criminal Procedure. It
    was submitted that the Code of Criminal Procedure
    lays down specific and express provisions governing
    the procedure to be followed in a criminal trial. It was
    submitted that the procedure laid down in the Code of
    Criminal Procedure was the “procedure established by
    law”. It was submitted that the legislature alone had
    the power to change the procedure by enacting a law
    amending it, and that when the procedure was so
    changed, that became “the procedure established by
    law”. It was submitted that any departure from the
    procedure laid down by law would be contrary to
    Article 21. In support of this submission reliance was
    placed on the cases of A.K. Gopalan v. State of
    Madras11
    , Nazir Ahmad v. King Emperor12 and Siva
    Kumar Chadda v. Municipal Corpn. of Delhi13. There
    10 (2003) 4 SCC 601
    11 AIR 1950 SC 27
    12 AIR 1936 PC 253 (2): 37 Cri LJ 897
    13 AIR 1995 SC 915 (sic)
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    can be no dispute with these propositions. However, if
    the existing provisions of the Criminal Procedure
    Code permit recording of evidence by videoconferencing then it could not be said that “procedure
    established by law” has not been followed.
  16. Recording of evidence by video-conferencing also
    satisfies the object of providing, in Section 273, that
    evidence be recorded in the presence of the accused.
    The accused and his pleader can see the witness as
    clearly as if the witness was actually sitting before
    them. In fact the accused may be able to see the
    witness better than he may have been able to if he was
    sitting in the dock in a crowded courtroom. They can
    observe his or her demeanour. In fact the facility to
    playback would enable better observation of
    demeanour. They can hear and rehear the deposition
    of the witness. The accused would be able to instruct
    his pleader immediately and thus cross-examination of
    the witness is as effective, if not better. The facility of
    playback would give an added advantage whilst crossexamining the witness. The witness can be confronted
    with documents or other material or statement in the
    same manner as if he/she was in court. All these
    objects would be fully met when evidence is recorded
    by video-conferencing. Thus no prejudice, of
    whatsoever nature, is caused to the accused. Of
    course, as set out hereinafter, evidence by videoconferencing has to be on some conditions.”
    B) In Sakshi vs. Union of India14 the observations of this Court
    were:-
    “27. The other aspect which has been
    highlighted and needs consideration relates to
    providing protection to a victim of sexual abuse at the
    time of recording his statement in court. The main
    14 (2004) 5 SCC 518
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    suggestions made by the petitioner are for
    incorporating special provisions in child sexual abuse
    cases to the following effect:
    (i) Permitting use of a videotaped interview of
    the child’s statement by the judge (in the presence of a
    child-support person).
    (ii) Allow a child to testify via closed-circuit
    television or from behind a screen to obtain a full and
    candid account of the acts complained of.
    (iii) The cross-examination of a minor should only be
    carried out by the judge based on written questions
    submitted by the defence upon perusal of the testimony
    of the minor.
    (iv) Whenever a child is required to give testimony,
    sufficient breaks should be given as and when required
    by the child.
    C) Recently in Mahender Chawla and Ors. vs. Union of India
    (UOI) and Ors.15
    , this Court stated:-
    “29. As pointed out above, in Sakshi’s case, the
    Court had insisted about the need to come up with a
    legislation for the protection of witnesses. It had even
    requested the Law Commission to examine certain aspects,
    which resulted to 172nd review of rape laws by the Law
    Commission. However, the Court specifically rejected the
    suggestion of the Law Commission regarding examination
    of vulnerable witnesses in the absence of Accused. Having
    regard to the provisions of Section 273 of the Code of
    Criminal Procedure, which is based on the tenets of
    principle of natural justice, that the witness must be
    examined in the presence of the Accused, such a principle
    cannot be sacrificed in trials and in inquiries regarding
    sexual offences. In such a scenario examination of these
    witnesses through video conferencing provides the
    solution which balances the interest of the Accused as well
    as vulnerable witnesses.”
    15
    2018 (15) SCALE 497
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  17. We will briefly refer to the statutory provisions
    governing the situation. Section 273 Cr.P.C. lays down
    that:
    “273. Except as otherwise expressly provided,
    all evidence taken in the course of the trial or other
    proceeding shall be taken in the presence of the
    accused, or, when his personal attendance is dispensed
    with, in the presence of his pleader.”
    Sub-section (1) of Section 327 CrPC lays down
    that any criminal court enquiring into or trying any
    offence shall be deemed to be open court, to which the
    public generally may have access, so far as the same
    can conveniently contain them. Sub-section (2) of the
    same section says that:
    “327. (2) Notwithstanding anything contained in
    sub-section (1) the inquiry into and trial of rape or an
    offence under Section 376, Section 376-A, Section
    376-B, Section 376-C or Section 376-D of the Indian
    Penal Code (45 of 1860) shall be conducted incamera.”
    Under the proviso to this sub-section
    “the Presiding Judge may, if he thinks fit, or on
    an application made by either of the parties, allow any
    particular person to have access to, or be or remain in,
    the room or building used by the court”.
    It is rather surprising that the legislature while
    incorporating sub-section (2) to Section 327 by
    amending Act 43 of 1983 failed to take note of
    offences under Sections 354 and 377 IPC and omitted
    to mention the aforesaid provisions. Deposition of the
    victims of offences under Sections 354 and 377 IPC
    can at times be very embarrassing to them.
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  18. The whole inquiry before a court being to
    elicit the truth, it is absolutely necessary that the
    victim or the witnesses are able to depose about the
    entire incident in a free atmosphere without any
    embarrassment. Section 273 CrPC merely requires the
    evidence to be taken in the presence of the accused.
    The section, however, does not say that the evidence
    should be recorded in such a manner that the accused
    should have full view of the victim or the witnesses.
    Recording of evidence by way of video-conferencing
    vis-à-vis Section 273 CrPC has been held to be
    permissible in a recent decision of this Court in State
    of Maharashtra v. Dr. Praful B. Desai1. There is
    major difference between substantive provisions
    defining crimes and providing punishment for the
    same and procedural enactment laying down the
    procedure of trial of such offences. Rules of procedure
    are handmaiden of justice and are meant to advance
    and not to obstruct the cause of justice. It is, therefore,
    permissible for the court to expand or enlarge the
    meanings of such provisions in order to elicit the truth
    and do justice with the parties.”
  19. We must also note certain observations of this Court in Jayendra
    Vishnu Thakur vs State of Maharashtra3 on which Mr. Hegde, learned
    Senior Advocate placed heavy reliance.
  20. The right of an accused to watch the
    prosecution witnesses deposing before a court of law
    indisputably is a valuable right. The Sixth Amendment
    of the United States Constitution explicitly provides
    therefor, which reads as under:
    “In all criminal prosecutions, the accused shall
    enjoy the right to a speedy and public trial, by an
    impartial jury of the State and district wherein the
    crime shall have been committed, which district shall
    have been previously ascertained by law, and to be
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    informed of the nature and cause of the accusation; to
    be confronted with the witnesses against him; to have
    compulsory process for obtaining witnesses in his
    favour, and to have the assistance of counsel for his
    defence.”
    We may, however, notice that such a right has not yet
    been accepted as a fundamental right within the
    meaning of Article 21 of the Constitution of India by
    the Indian courts. In the absence of such an express
    provision in our constitution, we have to proceed on a
    premise that such a right is only a statutory one.
  21. We may, however, notice that even in the
    United States of America, the accused’s right under
    the Sixth Amendment is not absolute. The right of
    confrontment of an accused is subject to just
    exceptions, including an orderly behaviour in the
    courtroom. In case of disruptive behaviour an accused
    can be asked to go outside the courtroom so long he
    does not undertake to behave in an orderly manner. It
    was so held in Illinois v. Allen16
    .
  22. Shri Sanjay Hegde, learned Senior Advocate also relied upon the
    statutory exceptions to the ambit of Section 273 of the Code. We may
    therefore consider the provisions of Section 273, 299 and 317 of the Code at
    the outset. Said provisions are:-
    “273. Evidence to be taken in presence of accused.
    – Except as otherwise expressly provided, all evidence
    taken in the course of the trial or other proceeding
    shall be taken in the presence of the accused, or, when
    his personal attendance is dispensed with, in the
    presence of his pleader:
    [Provided that where the evidence of a woman below
    the age of eighteen years who is alleged to have been
    16 397 US 337 (1970)
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    subjected to rape or any other sexual offence, is to be
    recorded, the court may take appropriate measures to
    ensure that such woman is not confronted by the
    accused while at the same time ensuring the right of
    cross-examination of the accused.]
  23. Record of evidence in absence of accused – (1)
    If it is proved that an accused person has absconded,
    and that there is no immediate prospect of arresting
    him, the Court competent to try 1
    [, or commit for trial]
    such person for the offence complained of may, in his
    absence, examine the witnesses (if any) produced on
    behalf of the prosecution, and record their depositions
    and any such deposition may, on the arrest of such
    person, be given in evidence against him on the
    inquiry into, or trial for, the offence with which he is
    charged, if the deponent is dead or incapable of giving
    evidence or cannot be found or his presence cannot be
    procured without an amount of delay, expenses or
    inconvenience which, under the circumstances of the
    case, would be unreasonable.
    (2) If it appears that an offence punishable with death
    or imprisonment for life has been committed by some
    person or persons unknown, the High Court or the
    Sessions Judge may direct that any Magistrate of the
    first class shall hold an inquiry and examine any
    witnesses who can give evidence concerning the
    offence and any depositions so taken may be given in
    evidence against any person who is subsequently
    accused of the offence, if the deponent is dead or
    incapable of giving evidence or beyond the limits of
    India.”
  24. Provision for inquiries and trial being held in
    the absence of accused in certain cases. – (1) At any
    stage of an inquiry or trial under this Code, if the
    Judge or Magistrate is satisfied, for reasons to be
    recorded that the personal attendance of the accused
    before the Court is not necessary in the interests of
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    justice, or that the accused persistently disturbs the
    proceedings in Court, the Judge or Magistrate may, if
    the accused is represented by a pleader, dispense with
    his attendance and proceed with such inquiry or trial
    in his absence, and may, at any subsequent stage of
    the proceedings, direct the personal attendance of such
    accused.
    (2) If the accused in any such case is not represented
    by a pleader, or if the Judge or Magistrate considers
    his personal attendance necessary, he may, if he thinks
    fit and for reasons to be recorded by him, either
    adjourn such inquiry or trial, or order that the case of
    such accused be taken up or tried separately.”
  25. Section 273 opens with the expression “Except as otherwise expressly
    provided…” By its very nature, the exceptions to the application of Section
    273 must be those which are expressly provided in the Code. Shri Hegde is
    right in his submission in that behalf. Sections 299 and 317 are such express
    exceptions provided in the Code. In the circumstances mentioned in said
    Sections 299 and 317, the contents of which need no further elaboration, 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”. There was a debate during the course of hearing in the present
    matter whether such dispensation by the Court has to be express or could it
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    be implied from the circumstances. We need not go into these questions as
    the record clearly indicates that an objection was raised by the Advocate
    appearing for the appellants right at the initial stage that the evidence was
    being recorded without ensuring the presence of the appellants in Court.
    There was neither any willingness on the part of the appellants nor any order
    or direction by the trial Court that the evidence be recorded in the absence of
    the appellants. The matter, therefore, would not come within the scope of
    the latter part of Section 273 and it cannot be said that there was any
    dispensation as contemplated by the said Section. We will, therefore,
    proceed on the footing that 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. The submissions advanced by Shri Sanjay
    Hegde, learned Senior Advocate, relying upon paragraphs in Jayendra
    Vishnu Thakur vs. State of Maharashtra and others17 as quoted above,
    that the right of the accused to watch the prosecution witness is a valuable
    right, also need not detain us. We accept that such a right is a valuable one
    and there was an infringement in the present case. What is material to
    17 (2009) 7 SCC 104
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    consider is the effect of such infringement? Would it vitiate the trial or such
    an infringement is a curable one?
  26. The emphasis was laid by Dr. Manish Singhvi, learned Senior
    Advocate for the State on the articles relied upon by him to submit that the
    theory of “harmless error” which has been recognized in criminal
    jurisprudence and that there must be a remedial approach. Again, we need
    not go into these broader concepts as the provisions of the Code, in our
    considered view, are clearly indicative and lay down with clarity as to which
    infringements per se, would result in vitiation of proceedings. Chapter
    XXXV of the Code 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. Shri Hegde, learned Senior Advocate was quick to rely on the
    passages in Jayendra Vishnu Thakur10 to submit that the prejudice in such
    cases would be inherent or per se. Paragraphs 57 and 58 of said decision
    were as under:-
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    “57. Mr. Naphade would submit that the appellant did
    not suffer any prejudice. We do not agree.
    Infringement of such a valuable right itself causes
    prejudice. In S.L. Kapoor v. Jagmohan18 this Court
    clearly held: (SCC p. 395, para 24)
    “24. … In our view the principles of natural justice
    know of no exclusionary rule dependent on whether it
    would have made any difference if natural justice had
    been observed. The non-observance of natural justice
    is itself prejudice to any man and proof of prejudice
    independently of proof of denial of natural justice is
    unnecessary. It will comes from a person who has
    denied justice that the person who has been denied
    justice is not prejudiced.”
  27. In A.R. Antulay vs. R.S. Nayak19 a seven-Judge
    Bench of this Court has also held that when an order
    has been passed in violation of a fundamental right or
    in breach of the principles of natural justice, the same
    would be a nullity. (See also State of Haryana vs.
    State of Punjab20 and Rajasthan SRTC vs. Zakir
    Hussain21.”
  28. The aforementioned observations in Jayendra Vishnu Thakur10 must
    be read in the peculiar factual context of the matter. The accused Jayendra
    Vishnu Thakur was tried in respect of certain offences in a Court in Delhi
    and at the same time he was also an accused in a trial under the provisions of
    TADA Act22 in a Court in Pune. The trial in the Court in Pune proceeded on
    18 (1980) 4 SCC 379
    19 (1988) 2 SCC 602
    20 (2004) 12 SCC 673
    21 (2005) 7 SCC 447
    22 Terrorists and Anti Disruptive Activities (Prevention) Act, 1987
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    the basis that Jayendra Vishnu Thakur was an absconding accused. The
    evidence was thus led in the trial in Pune in his absence when he was not
    sent up for trial, at the end of which all the accused were acquitted.
    However, in an appeal arising therefrom, this Court convicted some of the
    accused for offences with which they were tried. In the meantime, Jayendra
    Vishnu Thakur was convicted by the Court in Delhi and was undergoing
    sentence imposed upon him. Later, he was produced before the Court in
    Pune with a supplementary charge-sheet and charges were framed against
    him along with certain other accused. A request was made by the Public
    Prosecutor that the evidence of some of the witnesses, which was led in the
    earlier trial be read in evidence in the fresh trial against Jayendra Vishnu
    Thakur as those witnesses were either dead or not available to be
    examined23. The request was allowed which order of the Court in Pune was
    under challenge before this Court. It was found by this Court that the basic
    premise for application of Section 299 of the Code was completely absent.
    The Accused had not absconded. He was very much in confinement and
    could have been produced in the earlier trial before the Court in Pune. Since
    the requirements of Section 299 were not satisfied, the evidence led on the
    earlier occasion could not be taken as evidence in the subsequent
    23 Paras 8 & 9 of Jayendra Vishnu Thakur vs. State of Maharashtra (supra)
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    proceedings. The witnesses were not alive and could not be re-examined in
    the fresh trial nor could there be cross-examination on behalf of the accused.
    If the evidence in the earlier trial was to be read in the subsequent trial, the
    accused would be denied the opportunity of cross-examination of the
    concerned witnesses. Thus, the prejudice was inherent. It is in this factual
    context that the observations of this Court have to be considered. Same is
    not the situation in the present matter. It is 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.
  29. The learned Amicus Curiae was right in relying upon the provisions of
    Chapter XXVIII (Sections 366 to 371 of The Code) and Chapter XXIX
    (Sections 372 to 394 of The Code). He was also right in saying that the
    Chapter XXVIII was more relevant in the present matter and the judgment of
    the High Court was supported more strongly by provisions of Chapter
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    XXVIII. The provisions of Sections 366 to 368 and Sections 386 and 391
    are quoted here for ready reference:-
    “366. Sentence of death to be submitted by Court
    of Session for confirmation – (1) When the Court of
    Session passes a sentence of death, the proceedings
    shall be submitted to the High Court, and the sentence
    shall not be executed unless it is confirmed by the
    High Court.
    (2) The Court passing the sentence shall commit the
    convicted person to jail custody under a warrant.
  30. Power to direct further inquiry to be made or
    additional evidence to be taken – (1) If, when such
    proceedings are submitted, the High Court thinks that
    a further inquiry should be made into or additional
    evidence taken upon, any point bearing upon the guilt
    or innocence of the convicted person, it may make
    such inquiry or take such evidence itself, or direct it to
    be made or taken by the Court of Session.
    (2) Unless the High Court otherwise directs, the
    presence of the convicted person may be dispensed
    with when such inquiry is made or such evidence is
    taken.
    (3) When the inquiry or evidence (if any) is not made
    or taken by the High Court the result of such inquiry
    or evidence shall be certified to such Court.
  31. Power of High Court to confirm sentence or
    annual conviction – In any case submitted under
    section 366, the High Court –
    (a) may confirm the sentence, or pass any other
    sentence warranted by law, or
    (b) may annul the conviction, and convict the
    accused of any offence of which the Court of
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    Session might have convicted him, or order of a
    a new trial on the same or an amended charge, or
    (c) may acquit the accused person:
    Provided that no order of confirmation shall be
    made under this section until the period allowed
    for preferring an appeal has expired, or, if an
    appeal is presented within such period, until
    such appeal is disposed of.
  32. Powers of the Appellate Court. – After
    perusing such record and hearing the appellant or his
    pleader, if he appears, and in case of an appeal under
    section 377 or section 378, the accused, if he appears,
    the Appellate Court may, if it considers that there is no
    sufficient ground for interfering, dismiss the appeal, or
    may –
    (a) in an appeal from an order of acquittal, reverse
    such order and direct that further inquiry be made, or
    that the accused be re-tried or committed for trial, as
    the case may be, or find him guilty and pass sentence
    on him according to law;
    (b) in an appeal from a conviction –
    (i) reverse the finding and sentence and acquit or
    discharge the accused, or order him to be re-tried by a
    Court of competent jurisdiction subordinate to such
    Appellate Court or committed for trial, or
    (ii) alter the finding, maintaining the sentence, or
    (iii) with or without altering the finding, alter the
    nature or the extent, or the nature and extent, of the
    sentence, but not so as to enhance the same;
    (c) in an appeal for enhancement of sentence –
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    (i) reverse the finding and sentence and acquit
    or discharge the accused or order him to be
    re-tried by a Court competent to try the
    offence, or
    (ii) Alter the finding maintaining the sentence,
    or
    (iii) With or without altering the finding alter
    the nature or the extent, or the nature and
    extent, of the sentence, so as to enhance or
    reduce the same;
    (d) in an appeal from any other order alter or reverse
    such order;
    (e) Make any amendment or any consequential or
    incidental order that may be just or proper:
    Provided that the sentence shall not be enhanced
    unless the accused has had an opportunity of
    showing cause against such enhancement:
    Provided further that the Appellate Court shall not
    inflict greater punishment for the offence which is
    in its opinion the accused has committed, than
    might have been inflicted for that offence by the
    Court passing the order or sentence under appeal.
  33. Appellate Court may take further evidence or
    direct it to be taken – (1) In dealing with any appeal
    under this Chapter, the Appellate Court, if it thinks
    additional evidence to be necessary, shall record its
    reasons and may either take such evidence itself, or
    direct it to be taken by a Magistrate, or when the
    Appellate Court is a High Court, by a Court of
    Session or a Magistrate.
    (2) When the additional evidence is taken by the
    Court of Session or the Magistrate, it or he shall
    certify such evidence to the Appellate Court, and such
    Court shall thereupon proceed to dispose of the
    appeal.
    (3) The accused or his pleader shall have the right to
    be present when the additional evidence is taken.
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    (4) The taking of evidence under this section shall be
    subject to the provisions of Chapter XXIII, as if it
    were an inquiry.”
  34. According to Section 366 when a Court of Sessions passes a sentence
    of death, the proceedings must be submitted to the High Court and the
    sentence of death is not to be executed unless it is confirmed by the High
    Court. Section 367 then proceeds to lay down the power of the High Court
    to direct further enquiry to be made or additional evidence to be taken.
    Section 368, thereafter, lays down the power of the High Court to confirm
    the sentence so imposed or annul the conviction. One of the powers which
    the High Court can exercise is one under Section 368 (c) of the Code and
    that is to “acquit the accused person”. Pertinently, the power to acquit the
    person can be exercised by the High Court even without there being any
    substantive appeal on the part of the accused challenging his conviction. To
    that extent the proceedings under Chapter XXVIII which deals with
    “submission of death sentences for confirmation” is a proceeding in
    continuation of the trial. These provisions 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 the Code deals with “Appeals”. Section 391 also
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    entitles the Appellate Court to take further evidence or direct such further
    evidence to be taken. Section 386 then enumerates powers of the Appellate
    Court which inter alia includes the power to “reverse the finding and
    sentence and acquit or discharge the accused, or order him to be re-tried by a
    Court of competent jurisdiction subordinate to such Appellate Court or
    committed for trial”. 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 the Code. 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.
  35. It is true that as consistently laid down by this Court, an order of
    retrial of a criminal case is not to be taken resort to easily and must be made
    in exceptional cases. For example, it was observed by this Court in Pandit
    Ukha Kolhe vs State of Maharashtra2
    , as under:-
    “15. An order for retrial of a criminal case is made in
    exceptional cases, and not unless the appellate Court
    is satisfied that the Court trying the proceeding had no
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    jurisdiction to try it or that the trial was vitiated by
    serious illegalities or irregularities or on account of
    misconception of the nature of the proceedings and on
    that account in substance there had been no real trial
    or that the Prosecutor or an accused was, for reasons
    over which he had no control, prevented from leading
    or tendering evidence material to the charge, and in
    the interests of justice the appellate Court deems it
    appropriate, having regard to the circumstances of the
    case, that the accused should be put on his trial again.
    An order of re-trial wipes out from the record the
    earlier proceeding, and exposes the person accused to
    another trial which affords the prosecutor an
    opportunity to rectify the infirmities disclosed in the
    earlier trial, and will not ordinarily be countenanced
    when it is made merely to enable the prosecutor to
    lead evidence which he could but has not cared to lead
    either on account of insufficient appreciation of the
    nature of the case or for other reasons. Harries, C.J., in
    Ramanlal Rathi v. The State24
    “If at the end of a criminal prosecution the
    evidence leaves the Court in doubt as to the guilt of
    the accused the latter is entitled to a verdict of not
    guilty. A retrial may be ordered when the original trial
    has not been satisfactory for particular reasons, for
    example, if evidence had been wrongly rejected which
    should have been admitted, or admitted when it
    should have been rejected, or the Court had refused to
    hear certain witness who should have been heard. But
    retrial cannot be ordered on the ground that the
    prosecution did not produce the proper evidence and
    did not know how to prove their case.”
  36. 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
    24 AIR (1951) Cal.305
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    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.
  37. We must also consider the matter from the stand point and perspective
    of the victims as suggested by the learned Amicus Curiae. Four persons of a
    family were done to death. 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. On the other
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    hand, if we were to accept the submission 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 cross-examination can be read in evidence.
  38. We, therefore, see no reason to interfere with the order passed and the
    directions issued by the High Court in the present matter. We affirm the
    view taken by the High Court and dismiss these appeals. The restraint which
    we had placed on the Trial Court not to pronounce the judgment hereby
    stands vacated. The Trial Court is now free to take the matter to its logical
    conclusion. Let a copy of this Order be immediately transmitted to the
    concerned Trial Court.
  39. We must say that we have not, and shall not be taken to have
    expressed any opinion on the merits or demerits of the case of the
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    prosecution, and the matter shall be gone into on its own merits at every
    stage of the proceedings.
  40. In the end, we must express our appreciation and gratitude to the
    learned Amicus Curiae for rendering very effective and able assistance in the
    matter. We are indeed grateful to him.
    ………..…..……..……J.
    (Uday Umesh Lalit)
    ..………….……………J.
    (Indu Malhotra)
    New Delhi,
    April 11, 2019