CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      1 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      2 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  cross-

examination was deferred.  The order recorded:-

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      3 “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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      4 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 cross-

examination of the witnesses but no objection was raised at any time during

such cross examination.  Further, no plea was raised before the Trial Court

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      5 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 de- novo 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      6 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 de- novo 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:-

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      7 “…  …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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      8 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.

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      9 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      10 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      11 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      12 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)

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      13 can be no dispute with these propositions. However, if the  existing  provisions  of  the  Criminal  Procedure Code  permit  recording  of  evidence  by  video- conferencing then it could not be said that “procedure established by law” has not been followed.

20. 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 cross- examining 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  video- conferencing 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      14 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

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      15

30. 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  in- camera.”

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.

CRIMINAL APPEAL NOS.656-657  of 2019 (@SLP (CRL) Nos.809-810 of 2019 ATMA RAM & ORS. VS. STATE OF RAJASTHAN

                                      16 31. 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.”

16. 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.  

18. 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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                                      17 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.

22. 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.

17. 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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                                      19 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.”

18. 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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                                      20 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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                                      21 consider is the effect of such infringement?  Would it vitiate the trial or such

an infringement is a curable one?

19. 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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                                      22  “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.”

58. 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.”

20. 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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                                      23 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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                                      24 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.

21. 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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                                      26 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.  

386.  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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                                      28 (4)  The taking of evidence under this section shall be subject  to  the  provisions  of  Chapter  XXIII,  as  if  it were an inquiry.”

22. 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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                                      29 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.

23. 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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                                      30 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."   

24. 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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                                      31 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.

25. 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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                                      32 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.  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.  

27. 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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                                      33 prosecution, and the matter shall be gone into on its own merits at every

stage of the proceedings.  

28. 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