ATMA RAM & ORS. versus STATE OF RAJASTHAN on 11 April 2019

[2019] 5 S.C.R. 714

SUPREME COURT REPORTS

[2019] 5 S.C.R.

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ATMA RAM & ORS.

v.

STATE OF RAJASTHAN

(Criminal Appeal Nos. 656-657 of 2019)

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APRIL 11, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Code of Criminal Procedure, 1973:

ss. 273, 299, 317, 461, Chapters XXVIII and XXIX –CExamination of witnesses without ensuring presence of accused inthe Court – Affect of – Criminal trial – Conviction and death sentence– Death Reference and appeals by accused – High Court quashedthe judgment of trial court on the ground that the trial court hadrecorded the statements of twelve witnesses in the absence of accused– Direction to trial Court to record statements of the witnesses afterDsecuring presence of the accused in the court – In appeal, held:The right of accused to watch the prosecution witness is a valuableright – There was an infringement of such right in the present case– The direction issued by the High Court ensures examination ofthe witnesses in the presence of the accused.

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Chapters XXVIII and XXIX – Proceedings under – Power ofHigh Court – Held: The scope of Chapter XXVIII is wide – Theproceeding under this Chapter is a proceeding in continuation ofthe trial – Provisions of this Chapter entitle the High Court to directfurther enquiry or to take additional evidence, or even acquit theFaccused – Scope of Chapter XXIX is also wide – Direction by theHigh Court for de nove examination of the witnesses, in exercise ofpowers within Chapters XXVIII and XXIX was well within the powersof High Court.

Criminal Trial:G

Retrial of criminal case – Held: Retrial of criminal case is notto be taken resort to easily and must be made in exceptional cases.

Dismissing the appeals, the Court

HELD: 1. Section 273 Cr.P.C. opens with the expression“Except as otherwise expressly provided…”. By its very nature,H

the exceptions to the application of Section 273 must be thosewhich are expressly provided in the Cr.P.C. Sections 299 and317 are such express exceptions provided in the Cr.P.C. In thecircumstances mentioned in Sections 299 and 317, the Courtswould be justified in recording evidence in the absence of theaccused. Under its latter part, Section 273 also provides for asituation in which evidence could be recorded in the absence ofthe accused, when it says “when his personal attendance isdispensed with, in the presence of his pleader”. In the presentcase, there was no dispensation and yet the evidence was recordedwithout ensuring the presence of the accused. The High Courtwas, therefore, absolutely right in concluding that Section 273stood violated in the present matter and that there was aninfringement 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 “IrregularProceedings”, and Section 461 stipulates certain infringementsor irregularities which vitiate proceedings. Barring thosestipulated in Section 461, the thrust of the Chapter is that anyinfringement or irregularity would not vitiate the proceedingsunless, as a result of such infringement or irregularity, greatprejudice had occasioned to the accused. The right of the accusedto watch the prosecution witness is a valuable right and therewas an infringement of such right in the present case. In thepresent matter, it was not the direction of the High Court to readthe entire evidence on the earlier occasion as evidence in the denovo trial. The direction is to re-examine those witnesses whowere not examined in the presence of the appellants. Thedirection now ensures the presence of the appellants in the Court,so that they have every opportunity to watch the witnessesdeposing in the trial and cross-examine said witnesses. Sincethese basic requirements would be scrupulously observed andcomplied 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 Maharashtraand Anr. (2009) 7 SCC 104:[2009] 8 SCR 591– distinguished.

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A3. The proceedings under Chapter XXVIII of Cr.P.C. whichdeals with “submission of death sentences for confirmation” is aproceeding in continuation of the trial. The provisions in thisChapter thus entitle the High Court to direct further enquiry orto take additional evidence and the High Court may, in a givencase, even acquit the accused person. The scope of the chapterBis wider. Chapter XXIX of Cr.P.C. deals with “Appeals”. Thepowers of Appellate Court are equally wide. The High Court inthe present case was exercising powers both under ChaptersXXVIII and XXIX of Cr.P.C. If the power can go to the extent ofordering a complete re-trial, the exercise of power to a lesserCextent namely ordering de novo examination of twelve witnesseswith further directions as the High Court has imposed in thepresent matter, was certainly within the powers of the High Court.There is, thus, no infraction or jurisdictional error on the part ofthe High Court. [Para 22][736-F-H; 737-A-B]

D4. It is true that an order of retrial of a criminal case is notto be taken resort to easily and must be made in exceptionalcases. The order passed by the High Court in the present matterwas not to enable the Prosecutor to rectify the defects orinfirmities in the evidence or to enable him to lead evidence whichhe had not cared to lead on the earlier occasion. The evidence inEthe form of testimony of those twelve witnesses was led and thosewitnesses were cross-examined. There was no infirmity exceptthe one that the evidence was not led in the presence of theappellants. The remedy proposed was only to rectify suchinfirmity, and not to enable the Prosecutor to rectify defects inFthe evidence. [Para 23 and 24][737-B-C; 738-A-C]

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5. The matter should also be considered from the standpoint and perspective of the victims. It is certainly in the societalinterest that the guilty must be punished and at the same timethe procedural requirements which ensure fairness in trial mustGbe adhered to. If there was an infraction, which otherwise doesnot vitiate the trial by itself, the attempt must be to remedy thesituation to the extent possible, so that the interests of the accusedas well as societal interest are adequately safeguarded. The verysame witnesses were directed to be de novo examined which would ensure that the interest of the prosecution is subserved and atthe same time the accused will have every right and opportunityto watch the witnesses deposing against them, watch theirdemeanor and instruct their counsel properly so that saidwitnesses can be effectively cross-examined. In the process, theinterest of the accused would also stand protected. If it wereheld that the proceedings stood vitiated and, therefore, the HighCourt was powerless to order de novo examination of theconcerned witnesses, it would result in great miscarriage ofjustice. The persons who are accused of committing four murderswould not effectively be tried. The evidence against them wouldnot be read for a technical infraction resulting in great miscarriage.Viewed thus, the order and directions passed by the High Courtcompletely ensure that a fair procedure is adopted and thedepositions of the witnesses, after due distillation from their cross-examination 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 ; MahendraChawla v. Union of India (2018) 15 SCALE 497 ;Sakshi v. Union of India (2004) 5 SCC 518 : [2004] 2Suppl. SCR 723 – relied on.

State of Madhya Pradesh v. Bhooraji (2001) 7 SCC679 : [2001] 2 Suppl. SCR 128 ; Pandit Ukha Kolhe v.The State of Maharashtra [1964] 1 SCR 926 – referredto.

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

Case Law Reference

[2001] 2 Suppl. SCR 128[1964] 1 SCR 926[2003] 3 SCR 244[2004] 2 Suppl. SCR 7232018 (15) SCALE 497[2009] 8 SCR 591

referred toreferred torelied onrelied onrelied ondistinguished Para 9

Para 9Para 15 (A)Para 15 (B)Para 15 (C)Para 18

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNos. 656-657 of 2019.

From the Judgment and Order dated 13.12.2018 of the High Courtof Rajasthan at Jodhpur in D.B. Crl. Appeal No. 33 of 2018 and D.B.Crl. Death Reference No. 2 of 2017.B

Ranjit Kumar, Sr. Adv., Rishi Raj Sharma, (Amicus Curiae).

Sanjay Hegde, Sr. Adv., Saurabh Ajay Gupta, Nishant Bishnoi,Pranjal Kishore, Ms. Srishti Prabhakar, Saurabh Ajay Gupta, Advocatesfor the Appellants.

CDr. Manish Singhvi, Sr. Adv., Satyendra Kumar, Shailja NandaMishra, Rohit K. Singh, D. K. Devesh, Advs. for the Respondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. 1. Leave granted.

2. These appeals challenge the decision dated 03.12.2018 passedDby the High Court of Judicature of Rajasthan at Jodhpur in D.B. CriminalDeath Reference No.2 of 2017 and D.B. Criminal Appeal No.33 of2018.

3. FIR No.493 was registered with Police Station Bhadara, DistrictHanumangarh on 13.10.2013 in respect of offences punishable underESections 302, 307, 452, 447, 323, 147, 148 and 149 IPC pursuant toreporting by one Kailash. It was stated that seven named personsincluding present four appellants and some other unknown persons hadcome to the agricultural field of the informant while harvesting operationswere going on and had opened an assault. As a result, father of theFinformant named Bhanwarlal and brother of the informant named Pankajdied on the spot while the informant suffered injuries. It was furtheralleged that the same assembly, thereafter, went to the village andassaulted inmates of the house in which his grandfather namedMomanram died. Later, the informant Kailash also succumbed to hisinjuries.G

4. After due investigation, charge-sheet was filed against theappellants namely Atmaram, Omprakash, Leeladhar and Shravan Kumarwhile others were reported to be absconding. The trial was conductedin the Court of Additional Sessions Judge, Bhadara, DistrictHanumangarh. It appears that at the stage of recording of evidence, theH

appellants who were then in judicial custody were not produced in court.The order dated 28.10.2014 passed by the Trial Court recorded theobjection of the Advocate for the appellants. The examination-in-chiefof PW1-Chanduram and PW2-Chandrakala was undertaken withoutthe appellants being present in Court and the cross-examination wasdeferred. The order recorded:- “In Evidence PW1 Chanduram & PW2 Chandrakala, ChiefExamination was recorded. Advocate for accused sought timefor Cross Examination. Therefore, statements of witnesses werekept reserved. Witnesses PW1 & PW2 are to be present forCross Examination on 28.11.2014 and Witness no. 12, 13 and 143are to be issued summons to remain present on 29.11.2014. Forrecording evidence be present on 28.11.2014, till then JudicialCustody of Accused Atmaram, Om Prakash, Leeladhar andShravan is extended.”

5. Similarly, following 10 witnesses were also examined in Courton dates mentioned against their names, without ensuring the presenceof the appellants in Court.

PW3 Surendra Singh 13.2.2015PW4 Dharam Pal 13.2.2015PW 12 Vikrant Sharma 13.8.2015PW 13 Prahlad 3.9.2015PW 14 Ram Kumar 9.10.2015PW 15 Sushila 9.10.2015, 5.11.2015PW 17 Dr. Arun Tungariya 8.3.2016PW 18 Ram Pratap 12.5.2016, 20.6.2016, 14.2.2017PW 20 Sahab Singh 22.11.2016PW 23 Ramesh Kumar 14.2.2017

6. The Trial Court by its judgment and order dated 03.11.2017found that the prosecution had proved the case against the appellantsbeyond reasonable doubt and convicted the appellants for the offencespunishable under Sections 147, 148, 452, 447, 302 read with Section 149and Section 323 read with Section 149 IPC. The matter was then heardon sentence. After hearing the Public Prosecutor and Advocates for A

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Athe complainant, as well as the appellants, the Trial Court imposed deathsentence 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 DeathReference case.B

7. It was submitted inter alia on behalf of the appellants that theentire trial was vitiated because the Trial Court had recorded statementsof as many as twelve witnesses without ensuring presence of theappellants in Court. Relying on Section 273 of the Code of CriminalProcedure, 1973 (‘the Code’, for short), it was submitted that theCprocedure adopted by the Trial Court of recording statements of thewitnesses, without ensuring the presence of the appellants, amounted toan incurable illegality and as such the trial ought to be declared to bevitiated and the appellants be acquitted of the charges levelled againstthem. While opposing these submissions, the Prosecutor contended thatDnot only did the Advocate for the appellants conduct extensive cross-examination of the witnesses but no objection was raised at any timeduring such cross examination. Further, no plea was raised before theTrial Court during final arguments that the appellants were, in any way,prejudiced on account of their absence in the proceedings.

E8. The High Court observed that despite “pertinent objection ofthe defence counsel (albeit raised at the initial stages)”, the Trial Courthad proceeded to record the statements of twelve witnesses in the absenceof the appellants. In the light of the facts on record, the question whicharose for consideration was then framed by the High Court as under:- F“… …the significant question which arises for the Court’sconsideration is as to whether, the entire trial should be declaredvitiated; or that the matter should be remanded to the trial courtfor recording the statements of these witnesses afresh byexercising powers under Section 391 Cr.P.C. or that the impugnedjudgment should be set aside and the de-novo trial directed byGexercising powers under Section 386(b) Cr.P.C.”

9. After hearing both sides, the High Court considered cases ofState of Madhya Pradesh vs. Bhooraji[1], Pandit Ukha Kolhe vs.

The State of Maharashtra[2]and Jayendra Vishnu Thakur vs. Stateof Maharashtra and Anr[3]. The High Court then concluded:- A

“In the case of Pandit Ukha Kolhe, the Hon’ble Supreme Courtby majority view held that the prosecution should be givenopportunity to lead evidence on the matters indicated in the courseof the judgment; the accused be examined afresh under Section342 Cr.P.C. and the appeal be decided afresh. Thus, in this caseas well, the Supreme Court directed that fresh evidence shouldbe taken on matters of significance even at the appellate stage.

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Thus, none of the precedents cited by the defence counsel laysdown a straightjacket formula that a de-novo trial cannot bedirected in any condition. As a matter of fact, if any such view istaken, then the scope and operation of Section 386(b) Cr.P.C.would be rendered redundant.

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In view of the discussion made hereinabove and looking to theglaring facts of the case at hand, we feel that in order to docomplete justice to the accused as well as to the victims, the entirecase cannot be thrown out by holding the proceedings to be vitiatedon account of the mistakes committed by the trial Judge or theprison authorities concerned. A fresh trial/de-novo has to beordered by directing the trial court to lawfully re-record statementsof the witnesses indicated above whose evidence was recordedin the first round without ensuring presence of the accused in thecourt.

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During the course of arguments, Shri Moti Singh, Advocaterepresenting the appellants agreed that in case, the matter isremanded for fresh trial, no direction is required to be given torecord the statements of the remaining witnesses afresh becausewhen their testimony was recorded, the accused were kept presentin the course proceedings.”

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10. The High Court, therefore, quashed and set aside the judgmentdated 03.11.2017 passed by the Trial Court in Sessions Case No.14/G2014 and directed as under:- 2(1964) 1 SCR 926

3(2009) 7 SCC 104

SUPREME COURT REPORTS

A“… …It is hereby directed that trial court shall summon and recordthe statements of the witnesses P.W.1 Chandu Ram, P.W.2Chandrakala, P.W.3 Surendra Singh, P.W.4 Dharam Pal, P.W.12Vikrant Sharma, P.W.13 Prahlad, P.W. 14 Ram Kumar, P.W.15Sushila, P.W.17 Dr. Arun Tungariya, P.W. 18 Ram Pratap, P.W.20Sahab Singh and P.W.23 Ramesh Kumar afresh after securingBpresence of the accused in the court. Upon remand, the trialcourt shall conduct the proceedings on a day to day basis andshall, after recording the statements of the witnesses afresh inthe above terms, re-examine the accused under Section 313Cr.P.C.; provide them a justifiable/proper opportunity of leadingCdefence and decide the case afresh and as per law within fourmonths 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 raisedin the matter, this Court appointed Shri Ranjit Kumar, learned SeniorDAdvocate as Amicus Curiae to assist the Court. In the meantime, as aresult of the order passed by the High Court, the Trial Court had proceededwith 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 topronounce the judgment till further orders. The matter was, thereafter,Eheard by this Court. Mr. Sanjay Hegde, learned Senior Advocateappeared on behalf of the appellants, Dr. Manish Singhvi, learned SeniorAdvocate appeared on behalf of the State and Mr. Ranjit Kumar, learnedSenior Advocate appeared as Amicus Curiae at the request of the Court.After the oral submissions, the parties also filed their written submissions.

F12. Mr. Sanjay Hegde, learned Senior Advocate for the appellantssubmitted:-

A) Section 273 of the Code opens with expression, “Except asotherwise expressly provided… …” and the only exceptions tothe application of Section 273 are those expressly provided i.e. inGSections 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 witnessesdeposing before a Court is a valuable right and infringement ofsuch a right is gravely prejudicial.

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C) A re-trial wipes out from the record the earlier proceedingsand affords the Prosecutor an opportunity to rectify the infirmitiesin the earlier proceedings. Therefore, it can be ordered in veryrare circumstances and certainly not to take away the advantageensuing to the accused.

D) In any case, no partial re-trial can be ordered.

13. Dr. Manish Singhvi, learned Senior Advocate appearing forthe State submitted:-

A) The conclusion of the High Court that Section 273 is mandatorywas accepted by the State and no appeal was preferred.Proceeding on such premise, the question was whether the trialwas vitiated or the error could be rectified. Relying on Section279 of the Code under which evidence has to be given in a languageunderstood by the accused and infraction thereof was not foundto be of such magnitude so as to vitiate the proceedings[4], hesubmitted that infraction of Section 273 would also not vitiate thetrial.

B) Sections 460 to 465 of the Code stipulate remedies with respectto breaches of provisions of the Code and resultant effect.Contravention of Section 273 is not considered to be breach ofsuch magnitude which ought to result in vitiation of proceedings.

C) Relying on articles from Harvard Law Review[5] and ColumbiaLaw Review[6] it was submitted that theory of Harmless Error incriminal matters is firmly embedded in criminal jurisprudence anderror in the present matter is one which comes within suchcategory.

D) The contravention of Section 273 was remedied by the orderof re-trial so that there should not be any prejudice to the accused.The order directing de novo examination of twelve witnessesand re-trial to that extent was just and proper.

14. Shri Ranjit Kumar, learned Senior Advocate and AmicusCuriae relied upon decisions of this Court in State of Maharashtraand another vs. Praful B. Desai[7], Sakshi and others vs. Union of 4Shiv Narayan Kabira vs. State of Madras 1967 (1) SCR 138

5Harvard Law Review Vol. 131:2117

6Columbia Law Review Online – Vol.118 October 4, 2018 Pages 118-34

7(2003) 4 SCC 601

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AIndia[8], Mahendra Chawla vs. Union of India[9] and various provisionsof the Code to submit:-

A) The provisions of Section 273 are mandatory in nature only tothe extent that the evidence taken in the course of the trial oughtto be in the presence of the accused or when his personalBattendance is dispensed with, in the presence of his pleader; andthat the physical presence of the accused is not mandatory.

B) Elaborating further, it was submitted that non-compliance ofthe provisions of Section 273 is not an irregularity which wouldvitiate the criminal trial completely, as the irregularity was curable.

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C) Under Sections 366 to 371 of the Code dealing with “Submissionof Death Sentences for Confirmation” and Sections 372 to 394dealing with “Appeals”, the High Court was empowered to directre-trial and record additional evidence or direct further enquiry.

D) The provisions of Chapter XXVIII dealing with DeathDReferences are wider/larger in import as compared to the powersunder Chapter XXIX dealing with appeals and the view taken bythe High Court was supported more strongly by the provisions ofChapter XXVIII of the Code.

E) The criminal jurisprudence also recognizes rights of victims inEa criminal trial. In the present case, four male members of thefamily were killed, and the view taken by the High Court was anextremely balanced view which ensured that there was no failureor miscarriage of justice for the victims as well as the accused.

15. The cases cited by the learned Amicus Curiae dealt with issuesFwhether recording of evidence by video conferencing satisfied themandate of Section 273 of the Code.

A) In State of Maharashtra v. Dr. Praful B. Desai[10] it wasobserved:

“9. It was submitted on behalf of the respondents, that theprocedure governing a criminal trial is crucial to the basic rightof the accused under Articles 14 and 21 of the Constitution of G

8(2004) 5 SCC 518

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India. It was submitted that the procedure for trial of a criminalcase is expressly laid down, in India, in the Code of CriminalProcedure. It was submitted that the Code of CriminalProcedure lays down specific and express provisions governingthe procedure to be followed in a criminal trial. It was submittedthat the procedure laid down in the Code of Criminal Procedurewas the “procedure established by law”. It was submitted thatthe legislature alone had the power to change the procedureby enacting a law amending it, and that when the procedurewas so changed, that became “the procedure established bylaw”. It was submitted that any departure from the procedurelaid down by law would be contrary to Article 21. In support ofthis submission reliance was placed on the cases of A.K.Gopalan v. State of Madras[11], Nazir Ahmad v. KingEmperor[12]and Siva Kumar Chadda v. Municipal Corpn.of Delhi[13]. There can be no dispute with these propositions.However, if the existing provisions of the Criminal ProcedureCode permit recording of evidence by video-conferencing thenit could not be said that “procedure established by law” hasnot been followed.

20. Recording of evidence by video-conferencing also satisfiesthe object of providing, in Section 273, that evidence be recordedin the presence of the accused. The accused and his pleadercan see the witness as clearly as if the witness was actuallysitting before them. In fact the accused may be able to see thewitness better than he may have been able to if he was sittingin the dock in a crowded courtroom. They can observe his orher demeanour. In fact the facility to playback would enablebetter observation of demeanour. They can hear and rehearthe deposition of the witness. The accused would be able toinstruct his pleader immediately and thus cross-examination ofthe witness is as effective, if not better. The facility of playbackwould give an added advantage whilst cross-examining thewitness. The witness can be confronted with documents orother material or statement in the same manner as if he/she 11AIR 1950 SC 27

12AIR 1936 PC 253 (2): 37 Cri LJ 897

13AIR 1995 SC 915 (sic)

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was in court. All these objects would be fully met when evidenceis recorded by video-conferencing. Thus no prejudice, ofwhatsoever nature, is caused to the accused. Of course, asset out hereinafter, evidence by video-conferencing has to beon some conditions.”

BB) In Sakshi vs. Union of India[14]the observations of this Court were:- “27. The other aspect which has been highlighted and needsconsideration relates to providing protection to a victim of sexualabuse at the time of recording his statement in court. The mainsuggestions made by the petitioner are for incorporating specialprovisions in child sexual abuse cases to the following effect:

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(i) Permitting use of a videotaped interview of the child’sstatement by the judge (in the presence of a child-supportperson).

(ii) Allow a child to testify via closed-circuit television orDfrom behind a screen to obtain a full and candid account of theacts complained of.

(iii) The cross-examination of a minor should only be carriedout by the judge based on written questions submitted by thedefence upon perusal of the testimony of the minor.

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(iv) Whenever a child is required to give testimony, sufficientbreaks 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:-

F“29. As pointed out above, in Sakshi’s case, the Court hadinsisted about the need to come up with a legislation for theprotection of witnesses. It had even requested the LawCommission to examine certain aspects, which resulted to 172ndreview of rape laws by the Law Commission. However, the Courtspecifically rejected the suggestion of the Law CommissionGregarding examination of vulnerable witnesses in the absence ofAccused. Having regard to the provisions of Section 273 of theCode of Criminal Procedure, which is based on the tenets of 14(2004) 5 SCC 518H152018 (15) SCALE 497

principle of natural justice, that the witness must be examined inthe presence of the Accused, such a principle cannot be sacrificedin trials and in inquiries regarding sexual offences. In such ascenario examination of these witnesses through videoconferencing provides the solution which balances the interest ofthe Accused as well as vulnerable witnesses.”

30. We will briefly refer to the statutory provisions governingthe situation. Section 273 Cr.P.C. lays down that:

“273. Except as otherwise expressly provided, all evidencetaken in the course of the trial or other proceeding shall betaken in the presence of the accused, or, when his personalattendance is dispensed with, in the presence of his pleader.”

Sub-section (1) of Section 327 CrPC lays down that anycriminal court enquiring into or trying any offence shall bedeemed to be open court, to which the public generally mayhave 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 Section376, Section 376-A, Section 376-B, Section 376-C or Section376-D of the Indian Penal Code (45 of 1860) shall be conductedin-camera.”

Under the proviso to this sub-section

“the Presiding Judge may, if he thinks fit, or on an applicationmade by either of the parties, allow any particular person tohave access to, or be or remain in, the room or building usedby the court”.

It is rather surprising that the legislature while incorporatingsub-section (2) to Section 327 by amending Act 43 of 1983failed to take note of offences under Sections 354 and 377IPC and omitted to mention the aforesaid provisions. Depositionof the victims of offences under Sections 354 and 377 IPCcan at times be very embarrassing to them.

31. The whole inquiry before a court being to elicit the truth, itis absolutely necessary that the victim or the witnesses are able AB

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to depose about the entire incident in a free atmosphere withoutany embarrassment. Section 273 CrPC merely requires theevidence to be taken in the presence of the accused. The section,however, does not say that the evidence should be recorded insuch a manner that the accused should have full view of the victimor the witnesses. Recording of evidence by way of video-conferencing vis-à-vis Section 273 CrPC has been held to bepermissible in a recent decision of this Court in State ofMaharashtra v. Dr. Praful B. Desai[1]. There is major differencebetween substantive provisions defining crimes and providingpunishment for the same and procedural enactment laying downthe procedure of trial of such offences. Rules of procedure arehandmaiden of justice and are meant to advance and not to obstructthe cause of justice. It is, therefore, permissible for the court toexpand or enlarge the meanings of such provisions in order toelicit the truth and do justice with the parties.”

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D16. We must also note certain observations of this Court inJayendra Vishnu Thakur vs State of Maharashtra[3 ]on which Mr.Hegde, learned Senior Advocate placed heavy reliance.

18. The right of an accused to watch the prosecution witnessesdeposing before a court of law indisputably is a valuable right.EThe Sixth Amendment of the United States Constitution explicitlyprovides therefor, which reads as under:

“In all criminal prosecutions, the accused shall enjoy the rightto a speedy and public trial, by an impartial jury of the State anddistrict wherein the crime shall have been committed, which districtshall have been previously ascertained by law, and to be informedof the nature and cause of the accusation; to be confronted withthe witnesses against him; to have compulsory process for obtainingwitnesses in his favour, and to have the assistance of counsel forhis defence.”

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We may, however, notice that such a right has not yet beenaccepted as a fundamental right within the meaning of Article 21of the Constitution of India by the Indian courts. In the absence ofsuch an express provision in our constitution, we have to proceedon a premise that such a right is only a statutory one.

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22. We may, however, notice that even in the United States ofAmerica, the accused’s right under the Sixth Amendment is notabsolute. The right of confrontment of an accused is subject tojust exceptions, including an orderly behaviour in the courtroom.In case of disruptive behaviour an accused can be asked to gooutside the courtroom so long he does not undertake to behave inan orderly manner. It was so held in Illinois v. Allen[16].

17. Shri Sanjay Hegde, learned Senior Advocate also relied uponthe statutory exceptions to the ambit of Section 273 of the Code. Wemay therefore consider the provisions of Section 273, 299 and 317 of theCode at the outset. Said provisions are:- “273. Evidence to be taken in presence of accused. – Exceptas otherwise expressly provided, all evidence taken in the courseof the trial or other proceeding shall be taken in the presence ofthe 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 ofeighteen years who is alleged to have been subjected to rape orany other sexual offence, is to be recorded, the court may takeappropriate measures to ensure that such woman is not confrontedby the accused while at the same time ensuring the right of cross-examination of the accused.]

299. Record of evidence in absence of accused – (1) If it isproved that an accused person has absconded, and that there isno immediate prospect of arresting him, the Court competent totry [1][, or commit for trial] such person for the offence complainedof may, in his absence, examine the witnesses (if any) producedon behalf of the prosecution, and record their depositions and anysuch deposition may, on the arrest of such person, be given inevidence against him on the inquiry into, or trial for, the offencewith which he is charged, if the deponent is dead or incapable ofgiving evidence or cannot be found or his presence cannot beprocured without an amount of delay, expenses or inconveniencewhich, under the circumstances of the case, would beunreasonable.

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A(2) If it appears that an offence punishable with death orimprisonment for life has been committed by some person orpersons unknown, the High Court or the Sessions Judge may directthat any Magistrate of the first class shall hold an inquiry andexamine any witnesses who can give evidence concerning theoffence and any depositions so taken may be given in evidenceBagainst any person who is subsequently accused of the offence, ifthe deponent is dead or incapable of giving evidence or beyondthe limits of India.”

317. Provision for inquiries and trial being held in theabsence of accused in certain cases. – (1) At any stage of aninquiry or trial under this Code, if the Judge or Magistrate issatisfied, for reasons to be recorded that the personal attendanceof the accused before the Court is not necessary in the interestsof justice, or that the accused persistently disturbs the proceedingsin Court, the Judge or Magistrate may, if the accused is representedby a pleader, dispense with his attendance and proceed with suchinquiry or trial in his absence, and may, at any subsequent stage ofthe proceedings, direct the personal attendance of such accused.

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(2) If the accused in any such case is not represented by a pleader,or if the Judge or Magistrate considers his personal attendancenecessary, he may, if he thinks fit and for reasons to be recordedby him, either adjourn such inquiry or trial, or order that the caseof such accused be taken up or tried separately.”

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18. Section 273 opens with the expression “Except as otherwiseexpressly provided…” By its very nature, the exceptions to the applicationFof 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 317are such express exceptions provided in the Code. In the circumstancesmentioned in said Sections 299 and 317, the contents of which need nofurther elaboration, the Courts would be justified in recording evidencein the absence of the accused. Under its latter part, Section 273 alsoGprovides for a situation in which evidence could be recorded in the absenceof the accused, when it says “when his personal attendance is dispensedwith, in the presence of his pleader”. There was a debate during thecourse of hearing in the present matter whether such dispensation bythe Court has to be express or could it be implied from the circumstances.HWe need not go into these questions as the record clearly indicates that an objection was raised by the Advocate appearing for the appellantsright at the initial stage that the evidence was being recorded withoutensuring the presence of the appellants in Court. There was neither anywillingness on the part of the appellants nor any order or direction by thetrial Court that the evidence be recorded in the absence of the appellants.The matter, therefore, would not come within the scope of the latter partof Section 273 and it cannot be said that there was any dispensation ascontemplated by the said Section. We will, therefore, proceed on thefooting that there was no dispensation and yet the evidence was recordedwithout ensuring the presence of the accused. The High Court was,therefore, absolutely right in concluding that Section 273 stood violatedin the present matter and that there was an infringement of the salutaryprinciple under Section 273. The submissions advanced by Shri SanjayHegde, learned Senior Advocate, relying upon paragraphs in JayendraVishnu Thakur vs. State of Maharashtra and others[17] as quotedabove, that the right of the accused to watch the prosecution witness isa valuable right, also need not detain us. We accept that such a right isa valuable one and there was an infringement in the present case. Whatis material to consider is the effect of such infringement? Would itvitiate the trial or such an infringement is a curable one?

19. The emphasis was laid by Dr. Manish Singhvi, learned SeniorAdvocate for the State on the articles relied upon by him to submit thatthe theory of “harmless error” which has been recognized in criminaljurisprudence and that there must be a remedial approach. Again, weneed not go into these broader concepts as the provisions of the Code, inour considered view, are clearly indicative and lay down with clarity asto which infringements per se, would result in vitiation of proceedings.

Chapter XXXV of the Code deals with “Irregular Proceedings”, andSection 461 stipulates certain infringements or irregularities which vitiateproceedings. Barring those stipulated in Section 461, the thrust of theChapter is that any infringement or irregularity would not vitiate theproceedings unless, as a result of such infringement or irregularity, greatprejudice had occasioned to the accused. Shri Hegde, learned SeniorAdvocate was quick to rely on the passages in Jayendra VishnuThakur[10]to submit that the prejudice in such cases would be inherentor per se. Paragraphs 57 and 58 of said decision were as under:- 17(2009) 7 SCC 104

18(1980) 4 SCC 379

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“57. Mr. Naphade would submit that the appellant did not sufferany prejudice. We do not agree. Infringement of such a valuableright itself causes prejudice. In S.L. Kapoor v. Jagmohan[18]this Court clearly held: (SCC p. 395, para 24)

“24. … In our view the principles of natural justice know of noBexclusionary rule dependent on whether it would have madeany difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man andproof of prejudice independently of proof of denial of naturaljustice is unnecessary. It will comes from a person who hasdenied justice that the person who has been denied justice is notCprejudiced.”

58. In A.R. Antulay vs. R.S. Nayak[19] a seven-Judge Benchof this Court has also held that when an order has been passedin violation of a fundamental right or in breach of the principlesof natural justice, the same would be a nullity. (See also StateDof Haryana vs. State of Punjab[20]and Rajasthan SRTC vs.Zakir Hussain[21].”

20. The aforementioned observations in Jayendra VishnuThakur[10] must be read in the peculiar factual context of the matter.The accused Jayendra Vishnu Thakur was tried in respect of certainEoffences in a Court in Delhi and at the same time he was also an accusedin a trial under the provisions of TADA Act[22] in a Court in Pune. Thetrial in the Court in Pune proceeded on the basis that Jayendra VishnuThakur was an absconding accused. The evidence was thus led in thetrial in Pune in his absence when he was not sent up for trial, at the endFof which all the accused were acquitted. However, in an appeal arisingtherefrom, this Court convicted some of the accused for offences withwhich they were tried. In the meantime, Jayendra Vishnu Thakur wasconvicted by the Court in Delhi and was undergoing sentence imposedupon him. Later, he was produced before the Court in Pune with asupplementary charge-sheet and charges were framed against him alongGwith certain other accused. A request was made by the Public Prosecutorthat the evidence of some of the witnesses, which was led in the earlier 19(1988) 2 SCC 60220(2004) 12 SCC 67321(2005) 7 SCC 447H22Terrorists and Anti Disruptive Activities (Prevention) Act, 1987

trial be read in evidence in the fresh trial against Jayendra Vishnu Thakuras those witnesses were either dead or not available to be examined[23].The request was allowed which order of the Court in Pune was underchallenge before this Court. It was found by this Court that the basicpremise for application of Section 299 of the Code was completely absent.The Accused had not absconded. He was very much in confinementand could have been produced in the earlier trial before the Court inPune. Since the requirements of Section 299 were not satisfied, theevidence led on the earlier occasion could not be taken as evidence inthe subsequent proceedings. The witnesses were not alive and couldnot be re-examined in the fresh trial nor could there be cross-examinationon behalf of the accused. If the evidence in the earlier trial was to beread in the subsequent trial, the accused would be denied the opportunityof cross-examination of the concerned witnesses. Thus, the prejudicewas inherent. It is in this factual context that the observations of thisCourt have to be considered. Same is not the situation in the presentmatter. It is not the direction of the High Court to read the entire evidenceon the earlier occasion as evidence in the de novo trial. The direction isto re-examine those witnesses who were not examined in the presenceof the appellants. The direction now ensures the presence of theappellants in the Court, so that they have every opportunity to watch thewitnesses deposing in the trial and cross-examine said witnesses. Sincethese basic requirements would be scrupulously observed and compliedwith, there is no prejudice at all.

21. The learned Amicus Curiae was right in relying upon theprovisions of Chapter XXVIII (Sections 366 to 371 of The Code) andChapter XXIX (Sections 372 to 394 of The Code). He was also right insaying that the Chapter XXVIII was more relevant in the present matterand the judgment of the High Court was supported more strongly byprovisions of Chapter XXVIII. The provisions of Sections 366 to 368and Sections 386 and 391 are quoted here for ready reference:- “366. Sentence of death to be submitted by Court of Sessionfor confirmation – (1) When the Court of Session passes asentence of death, the proceedings shall be submitted to the HighCourt, and the sentence shall not be executed unless it is confirmedby the High Court.

23Paras 8 & 9 of Jayendra Vishnu Thakur vs. State of Maharashtra (supra)

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(2) The Court passing the sentence shall commit the convictedperson to jail custody under a warrant.

367. Power to direct further inquiry to be made or additionalevidence to be taken – (1) If, when such proceedings aresubmitted, the High Court thinks that a further inquiry should bemade into or additional evidence taken upon, any point bearingupon the guilt or innocence of the convicted person, it may makesuch inquiry or take such evidence itself, or direct it to be made ortaken by the Court of Session.

(2) Unless the High Court otherwise directs, the presence of theconvicted person may be dispensed with when such inquiry ismade or such evidence is taken.

(3) When the inquiry or evidence (if any) is not made or taken bythe High Court the result of such inquiry or evidence shall becertified to such Court.

368. Power of High Court to confirm sentence or annualconviction – In any case submitted under section 366, theHigh Court –

(a) may confirm the sentence, or pass any other sentencewarranted by law, or (b)may annul the conviction, and convict the accused ofany offence of which the Court of Session might haveconvicted him, or order of a a new trial on the same oran amended charge, or

(c) may acquit the accused person:

Provided that no order of confirmation shall be made underthis section until the period allowed for preferring an appealhas expired, or, if an appeal is presented within such period,until such appeal is disposed of.

386. Powers of the Appellate Court. – After perusing suchrecord and hearing the appellant or his pleader, if he appears, andin case of an appeal under section 377 or section 378, the accused,if he appears, the Appellate Court may, if it considers that there isno sufficient ground for interfering, dismiss the appeal, or may –

(a) in an appeal from an order of acquittal, reverse such orderand 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 guiltyand pass sentence on him according to law; (b) in an appeal from a conviction –

(i) reverse the finding and sentence and acquit or discharge theaccused, or order him to be re-tried by a Court of competentjurisdiction subordinate to such Appellate Court or committed fortrial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, but not so as toenhance the same;

(c) in an appeal for enhancement of sentence –

(i) reverse the finding and sentence and acquit or dischargethe accused or order him to be re-tried by a Courtcompetent to try the offence, or

(ii) Alter the finding maintaining the sentence, or

(iii) With or without altering the finding alter the nature or theextent, or the nature and extent, of the sentence, so as toenhance 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 orderthat may be just or proper:

Provided that the sentence shall not be enhanced unless theaccused has had an opportunity of showing cause against suchenhancement:

Provided further that the Appellate Court shall not inflict greaterpunishment for the offence which is in its opinion the accusedhas committed, than might have been inflicted for that offenceby the Court passing the order or sentence under appeal.

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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 AppellateCourt is a High Court, by a Court of Session or a Magistrate.

(2) When the additional evidence is taken by the Court of SessionBor the Magistrate, it or he shall certify such evidence to theAppellate Court, and such Court shall thereupon proceed to disposeof the appeal.

(3) The accused or his pleader shall have the right to be presentwhen the additional evidence is taken.

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(4) The taking of evidence under this section shall be subject tothe provisions of Chapter XXIII, as if it were an inquiry.”

22. According to Section 366 when a Court of Sessions passes asentence of death, the proceedings must be submitted to the High Courtand the sentence of death is not to be executed unless it is confirmed byDthe High Court. Section 367 then proceeds to lay down the power of theHigh Court to direct further enquiry to be made or additional evidence tobe taken. Section 368, thereafter, lays down the power of the HighCourt to confirm the sentence so imposed or annul the conviction. Oneof the powers which the High Court can exercise is one under SectionE368 (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 evenwithout there being any substantive appeal on the part of the accusedchallenging his conviction. To that extent the proceedings under ChapterXXVIII which deals with “submission of death sentences forconfirmation” is a proceeding in continuation of the trial. These provisionsFthus entitle the High Court to direct further enquiry or to take additionalevidence and the High Court may, in a given case, even acquit the accusedperson. The scope of the chapter is wider. Chapter XXIX of the Codedeals with “Appeals”. Section 391 also entitles the Appellate Court totake further evidence or direct such further evidence to be taken. SectionG386 then enumerates powers of the Appellate Court which inter aliaincludes the power to “reverse the finding and sentence and acquit ordischarge the accused, or order him to be re-tried by a Court of competentjurisdiction subordinate to such Appellate Court or committed for trial”.The powers of Appellate Court are equally wide. The High Court in thepresent case was exercising powers both under Chapters XXVIII and H

XXIX of the Code. If the power can go to the extent of ordering acomplete re-trial, the exercise of power to a lesser extent namely orderingde novo examination of twelve witnesses with further directions as theHigh Court has imposed in the present matter, was certainly within thepowers of the High Court. There is, thus, no infraction or jurisdictionalerror on the part of the High Court.

23. It is true that as consistently laid down by this Court, an orderof retrial of a criminal case is not to be taken resort to easily and must bemade in exceptional cases. For example, it was observed by this Courtin Pandit Ukha Kolhe vs State of Maharashtra[2], as under:- “15. An order for retrial of a criminal case is made in exceptionalcases, and not unless the appellate Court is satisfied that the Courttrying the proceeding had no jurisdiction to try it or that the trialwas vitiated by serious illegalities or irregularities or on accountof misconception of the nature of the proceedings and on thataccount in substance there had been no real trial or that theProsecutor or an accused was, for reasons over which he had nocontrol, prevented from leading or tendering evidence material tothe charge, and in the interests of justice the appellate Court deemsit 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 exposesthe person accused to another trial which affords the prosecutoran opportunity to rectify the infirmities disclosed in the earliertrial, and will not ordinarily be countenanced when it is made merelyto enable the prosecutor to lead evidence which he could but hasnot cared to lead either on account of insufficient appreciation ofthe nature of the case or for other reasons. Harries, C.J., inRamanlal Rathi v. The State[24]

“If at the end of a criminal prosecution the evidence leaves theCourt in doubt as to the guilt of the accused the latter is entitled toa verdict of not guilty. A retrial may be ordered when the originaltrial has not been satisfactory for particular reasons, for example,if evidence had been wrongly rejected which should have beenadmitted, or admitted when it should have been rejected, or theCourt had refused to hear certain witness who should have beenheard. But retrial cannot be ordered on the ground that the 24AIR (1951) Cal.305

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Aprosecution did not produce the proper evidence and did not knowhow to prove their case.”

24. The order passed by the High Court in the present matter wasnot to enable the Prosecutor to rectify the defects or infirmities in theevidence or to enable him to lead evidence which he had not cared toBlead on the earlier occasion. The evidence in the form of testimony ofthose twelve witnesses was led and those witnesses were cross-examined. There was no infirmity except the one that the evidence wasnot led in the presence of the appellants. The remedy proposed wasonly to rectify such infirmity, and not to enable the Prosecutor to rectifydefects in the evidence.C

25. We must also consider the matter from the stand point andperspective of the victims as suggested by the learned Amicus Curiae.Four persons of a family were done to death. It is certainly in the societalinterest that the guilty must be punished and at the same time theprocedural requirements which ensure fairness in trial must be adheredDto. If there was an infraction, which otherwise does not vitiate the trialby 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 areadequately safeguarded. The very same witnesses were directed to bede novo examined which would ensure that the interest of the prosecutionEis subserved and at the same time the accused will have every right andopportunity to watch the witnesses deposing against them, watch theirdemeanor and instruct their counsel properly so that said witnesses canbe effectively cross-examined. In the process, the interest of the accusedwould also stand protected. On the other hand, if we were to accept thesubmission that the proceedings stood vitiated and, therefore, the HighFCourt was powerless to order de novo examination of the concernedwitnesses, it would result in great miscarriage of justice. The personswho are accused of committing four murders would not effectively betried. The evidence against them would not be read for a technicalinfraction resulting in great miscarriage. Viewed thus, the order andGdirections passed by the High Court completely ensure that a fairprocedure is adopted and the depositions of the witnesses, after duedistillation from their cross-examination can be read in evidence.

26. We, therefore, see no reason to interfere with the order passedand the directions issued by the High Court in the present matter. WeHaffirm the view taken by the High Court and dismiss these appeals. The restraint which we had placed on the Trial Court not to pronounce thejudgment hereby stands vacated. The Trial Court is now free to takethe matter to its logical conclusion. Let a copy of this Order beimmediately transmitted to the concerned Trial Court.

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27. We must say that we have not, and shall not be taken to haveexpressed any opinion on the merits or demerits of the case of theBprosecution, and the matter shall be gone into on its own merits at everystage of the proceedings.

28. In the end, we must express our appreciation and gratitude tothe learned Amicus Curiae for rendering very effective and ableassistance in the matter. We are indeed grateful to him.

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Appeals dismissed.

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