Supreme Court of India
ATMA RAM & ORS.versusSTATE OF RAJASTHAN
- Citation
- 2019 INSC 516
- Decided
- 11 April 2019
- Disposal
- Dismissed
- Bench
- UDAY UMESH LALIT
Holding
The High Court was correctly empowered to order de novo examination of the twelve witnesses in the presence of the accused, as the breach of Section 273 was curable and did not vitiate the trial.
Summary
The appellants were convicted of multiple murders and sentenced to death. The trial court recorded the statements of twelve prosecution witnesses without the accused being present, violating Section 273 of the CrPC. The High Court set aside the conviction and ordered a de novo examination of those witnesses in the presence of the accused, invoking its powers under Chapters XXVIII and XXIX of the CrPC. The Supreme Court held that the High Court’s direction was proper, as the breach of Section 273 was curable and did not vitiate the trial, and that such remedial direction fell within the statutory powers of the appellate court. It further clarified that the exceptions in Sections 299 and 317 did not apply, and that the doctrine of harmless error does not excuse the infringement of the accused’s right to confront witnesses. Consequently, the appeals were dismissed and the trial court was directed to proceed with the fresh examination of the witnesses.
Issues considered
- The recording of witness statements without the accused present violates Section 273 CrPC and whether such violation vitiates the trial.
- Whether the High Court can remediate the violation by ordering de novo examination of witnesses under its powers under Chapters XXVIII and XXIX of the CrPC.
- Whether the High Court may direct a retrial or de novo trial in the circumstances and what the limits of such power are.
- Whether the infringement of the accused’s right to watch prosecution witnesses constitutes a curable error or a fatal prejudice requiring reversal.
- Whether Sections 299 and 317 provide permissible exceptions to Section 273 in the present facts.
Legislation cited
- Code of Criminal Procedure, 1973s. 273, s. 299, s. 317, s. 366, s. 367, s. 368, s. 386, s. 391, s. 461
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 447, s. 452
Subjects
Section 273 CrPCright to confront witnessde novo trialretrialhigh court powersdeath sentence confirmationharmless error doctrineprocedural fairnesscriminal procedureevidence recordingappealChapter XXVIII CrPCChapter XXIX CrPC
Judgment
714 [2019]
SUPREME COURT 5 S.C.R. 714
REPORTS [2019] 5 S.C.R.
A ATMA RAM & ORS.
v.
STATE OF RAJASTHAN
(Criminal Appeal Nos. 656-657 of 2019)
B APRIL 11, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Code of Criminal Procedure, 1973:
ss. 273, 299, 317, 461, Chapters XXVIII and XXIX –
C Examination of witnesses without ensuring presence of accused in
the Court – Affect of – Criminal trial – Conviction and death sentence
– Death Reference and appeals by accused – High Court quashed
the judgment of trial court on the ground that the trial court had
recorded the statements of twelve witnesses in the absence of accused
– Direction to trial Court to record statements of the witnesses after
D
securing presence of the accused in the court – In appeal, held:
The right of accused to watch the prosecution witness is a valuable
right – There was an infringement of such right in the present case
– The direction issued by the High Court ensures examination of
the witnesses in the presence of the accused.
E Chapters XXVIII and XXIX – Proceedings under – Power of
High Court – Held: The scope of Chapter XXVIII is wide – The
proceeding under this Chapter is a proceeding in continuation of
the trial – Provisions of this Chapter entitle the High Court to direct
further enquiry or to take additional evidence, or even acquit the
F accused – Scope of Chapter XXIX is also wide – Direction by the
High Court for de nove examination of the witnesses, in exercise of
powers within Chapters XXVIII and XXIX was well within the powers
of High Court.
Criminal Trial:
G Retrial of criminal case – Held: Retrial of criminal case is not
to 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
714
ATMA RAM & ORS. v. STATE OF RAJASTHAN 715
the exceptions to the application of Section 273 must be those A
which are expressly provided in the Cr.P.C. Sections 299 and
317 are such express exceptions provided in the Cr.P.C. In the
circumstances mentioned in Sections 299 and 317, the Courts
would be justified in recording evidence in the absence of the
accused. Under its latter part, Section 273 also provides for a
B
situation in which evidence could be recorded in the absence of
the accused, when it says “when his personal attendance is
dispensed with, in the presence of his pleader”. In the present
case, there was no dispensation and yet the evidence was recorded
without ensuring the presence of the accused. The High Court
was, therefore, absolutely right in concluding that Section 273 C
stood violated in the present matter and that there was an
infringement of the salutary principle under Section 273.
[Para 18][730-F-G; 731-B-C]
2. Chapter XXXV of the Cr.P.C. deals with “Irregular
Proceedings”, and Section 461 stipulates certain infringements D
or irregularities which vitiate proceedings. Barring those
stipulated in Section 461, the thrust of the Chapter is that any
infringement or irregularity would not vitiate the proceedings
unless, as a result of such infringement or irregularity, great
prejudice had occasioned to the accused. The right of the accused
to watch the prosecution witness is a valuable right and there E
was an infringement of such right in the present case. In the
present matter, it was not the direction of the High Court to read
the entire evidence on the earlier occasion as evidence in the de
novo trial. The direction is to re-examine those witnesses who
were not examined in the presence of the appellants. The F
direction now ensures the presence of the appellants in the Court,
so that they have every opportunity to watch the witnesses
deposing in the trial and cross-examine said witnesses. Since
these basic requirements would be scrupulously observed and
complied with, there is no prejudice at all. [Paras 19 and 20]
[731-F-G; 731-C-D; 733-D-E] G
Jayendra Vishnu Thakur v. State of Maharashtra
and Anr. (2009) 7 SCC 104:[2009] 8 SCR 591
– distinguished.
H
716 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 3. The proceedings under Chapter XXVIII of Cr.P.C. which
deals with “submission of death sentences for confirmation” is a
proceeding in continuation of the trial. The provisions in this
Chapter thus entitle the High Court to direct further enquiry or
to take additional evidence and the High Court may, in a given
case, even acquit the accused person. The scope of the chapter
B
is wider. Chapter XXIX of Cr.P.C. deals with “Appeals”. The
powers of Appellate Court are equally wide. The High Court in
the present case was exercising powers both under Chapters
XXVIII and XXIX of Cr.P.C. If the power can go to the extent of
ordering a complete re-trial, the exercise of power to a lesser
C extent namely ordering de novo examination of twelve witnesses
with further directions as the High Court has imposed in the
present matter, was certainly within the powers of the High Court.
There is, thus, no infraction or jurisdictional error on the part of
the High Court. [Para 22][736-F-H; 737-A-B]
D 4. It is true that an order of retrial of a criminal case is not
to be taken resort to easily and must be made in exceptional
cases. The order passed by the High Court in the present matter
was not to enable the Prosecutor to rectify the defects or
infirmities in the evidence or to enable him to lead evidence which
he had not cared to lead on the earlier occasion. The evidence in
E 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
F the evidence. [Para 23 and 24][737-B-C; 738-A-C]
5. The matter should also be considered from the stand
point and perspective of the victims. It is certainly in the societal
interest that the guilty must be punished and at the same time
the procedural requirements which ensure fairness in trial must
G 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
H
ATMA RAM & ORS. v. STATE OF RAJASTHAN 717
ensure that the interest of the prosecution is subserved and at A
the same time the accused will have every right and opportunity
to watch the witnesses deposing against them, watch their
demeanor and instruct their counsel properly so that said
witnesses can be effectively cross-examined. In the process, the
interest of the accused would also stand protected. If it were
B
held that the proceedings stood vitiated and, therefore, the High
Court was powerless to order de novo examination of the
concerned witnesses, it would result in great miscarriage of
justice. The persons who are accused of committing four murders
would not effectively be tried. The evidence against them would
not be read for a technical infraction resulting in great miscarriage. C
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. [Para 25][738-C-G]
State of Maharashtra and another v. Praful B. Desai D
(2003) 4 SCC 601 : [2003] 3 SCR 244 ; Mahendra
Chawla v. Union of India (2018) 15 SCALE 497 ;
Sakshi v. Union of India (2004) 5 SCC 518 : [2004] 2
Suppl. SCR 723 – relied on.
State of Madhya Pradesh v. Bhooraji (2001) 7 SCC E
679 : [2001] 2 Suppl. SCR 128 ; Pandit Ukha Kolhe v.
The State of Maharashtra [1964] 1 SCR 926 – referred
to.
Harvard Law Review Vol. 131:2117 – referred to.
Case Law Reference F
[2001] 2 Suppl. SCR 128 referred to Para 9
[1964] 1 SCR 926 referred to Para 9
[2003] 3 SCR 244 relied on Para 15 (A)
[2004] 2 Suppl. SCR 723 relied on Para 15 (B) G
2018 (15) SCALE 497 relied on Para 15 (C)
[2009] 8 SCR 591 distinguished Para 18
H
718 SUPREME COURT REPORTS [2019] 5 S.C.R.
A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 656-657 of 2019.
From the Judgment and Order dated 13.12.2018 of the High Court
of 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, Advocates
for the Appellants.
C Dr. Manish Singhvi, Sr. Adv., Satyendra Kumar, Shailja Nanda
Mishra, 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 passed
D
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
E Sections 302, 307, 452, 447, 323, 147, 148 and 149 IPC pursuant to
reporting by one 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
F 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.
G
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
H
ATMA RAM & ORS. v. STATE OF RAJASTHAN 719
[UDAY UMESH LALIT, J.]
appellants who were then in judicial custody were not produced in court. A
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:-
B
“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 C
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 D
of the appellants in Court.
PW3 Surendra Singh 13.2.2015
PW4 Dharam Pal 13.2.2015
PW 12 Vikrant Sharma 13.8.2015 E
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 F
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
G
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 Section 149 IPC. The matter was then heard
on sentence. After hearing the Public Prosecutor and Advocates for H
720 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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.
B
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
C 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
D 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 during final arguments that the appellants were, in any way,
prejudiced on account of their absence in the proceedings.
E 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:-
F “… …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
G 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.
1
H (2001) 7 SCC 679
ATMA RAM & ORS. v. STATE OF RAJASTHAN 721
[UDAY UMESH LALIT, J.]
The State of Maharashtra2 and Jayendra Vishnu Thakur vs. State A
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 evidence on the matters indicated in the course
of the judgment; the accused be examined afresh under Section B
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 C
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 D
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 E
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 F
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/ G
2014 and directed as under:-
2
(1964) 1 SCR 926
3
(2009) 7 SCC 104 H
722 SUPREME COURT REPORTS [2019] 5 S.C.R.
A “… …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
B
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
C 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
D 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,
E heard by this Court. Mr. Sanjay Hegde, learned Senior Advocate
appeared on behalf of the appellants, Dr. Manish 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.
F 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
G 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.
H
ATMA RAM & ORS. v. STATE OF RAJASTHAN 723
[UDAY UMESH LALIT, J.]
C) A re-trial wipes out from the record the earlier proceedings A
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.
D) In any case, no partial re-trial can be ordered. B
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 C
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 D
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. E
5
C) Relying on articles from Harvard Law Review 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. F
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 G
Curiae relied upon decisions of this Court in State of Maharashtra
and another vs. Praful B. Desai7, Sakshi and others vs. Union of
4
Shiv Narayan Kabira vs. State of Madras 1967 (1) SCR 138
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 H
724 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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
B 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 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
D 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
E a criminal trial. In the present case, four male members of the
family were killed, and the view taken by the 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
F 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
G procedure governing a criminal trial is crucial to the basic right
of the accused under Articles 14 and 21 of the Constitution of
8
(2004) 5 SCC 518
9
(2018) 15 SCALE 497
10
H (2003) 4 SCC 601
ATMA RAM & ORS. v. STATE OF RAJASTHAN 725
[UDAY UMESH LALIT, J.]
India. It was submitted that the procedure for trial of a criminal A
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
B
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 C
this submission reliance was placed on the cases of A.K.
Gopalan v. State of Madras 11 , Nazir Ahmad v. King
Emperor12 and Siva Kumar Chadda v. Municipal Corpn.
of Delhi13. There can be no dispute with these propositions.
However, if the existing provisions of the Criminal Procedure
D
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 E
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 F
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 G
other material or statement in the same manner as if he/she
11
AIR 1950 SC 27
12
AIR 1936 PC 253 (2): 37 Cri LJ 897
13
AIR 1995 SC 915 (sic) H
726 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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 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
suggestions made by the petitioner are for incorporating special
C 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
D 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.
E
(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:-
F “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
G 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
14
(2004) 5 SCC 518
15
H 2018 (15) SCALE 497
ATMA RAM & ORS. v. STATE OF RAJASTHAN 727
[UDAY UMESH LALIT, J.]
principle of natural justice, that the witness must be examined in A
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.”
B
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 C
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. D
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 E
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 F
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 G
of the victims of offences under Sections 354 and 377 IPC
can at times be very embarrassing to them.
31. The whole inquiry before a court being to elicit the truth, it
is absolutely necessary that the victim or the witnesses are able
H
728 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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-
B
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
C 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.”
D 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.
E 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
F shall have been previously ascertained by law, and to be 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.”
G 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.
H
ATMA RAM & ORS. v. STATE OF RAJASTHAN 729
[UDAY UMESH LALIT, J.]
22. We may, however, notice that even in the United States of A
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
B
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:-
C
“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:
D
[Provided that where the evidence of a woman below the age of
eighteen years who is alleged to have been subjected to rape or
any other sexual offence, is to be recorded, the court may take
appropriate measures to ensure that such woman is not confronted
by the accused while at the same time ensuring the right of cross-
examination of the accused.] E
299. Record of evidence in absence of accused – (1) If it is
proved that an accused person has absconded, and that there is
no immediate prospect of arresting him, the Court competent to
try 1[, or commit for trial] such person for the offence complained
of may, in his absence, examine the witnesses (if any) produced F
on behalf of the prosecution, and record their depositions and any
such deposition may, on the arrest of such person, be given in
evidence against him on the inquiry into, or trial for, the offence
with which he is charged, if the deponent is dead or incapable of
giving evidence or cannot be found or his presence cannot be G
procured without an amount of delay, expenses or inconvenience
which, under the circumstances of the case, would be
unreasonable.
16
397 US 337 (1970) H
730 SUPREME COURT REPORTS [2019] 5 S.C.R.
A (2) If it appears that an offence punishable with death or
imprisonment for life has been committed by some person or
persons unknown, the High Court or the Sessions Judge may direct
that any Magistrate of the first class shall hold an inquiry and
examine any witnesses who can give evidence concerning the
offence and any depositions so taken may be given in evidence
B
against any person who is subsequently accused of the offence, if
the deponent is dead or incapable of giving evidence or beyond
the limits of India.”
317. Provision for inquiries and trial being held in the
absence of accused in certain cases. – (1) At any stage of an
C inquiry or trial under this Code, if the Judge or Magistrate is
satisfied, for reasons to be recorded that the personal attendance
of the accused before the Court is not necessary in the interests
of justice, or that the accused persistently disturbs the proceedings
in Court, the Judge or Magistrate may, if the accused is represented
D 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
E 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
F 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
G 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 be implied from the circumstances.
H We need not go into these questions as the record clearly indicates that
ATMA RAM & ORS. v. STATE OF RAJASTHAN 731
[UDAY UMESH LALIT, J.]
an objection was raised by the Advocate appearing for the appellants A
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
B
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 C
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
D
a valuable one and there was an infringement in the present case. What
is material to 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 E
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 F
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 G
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:-
17
(2009) 7 SCC 104
18
(1980) 4 SCC 379 H
732 SUPREME COURT REPORTS [2019] 5 S.C.R.
A “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
B 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
C 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
D 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
E 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 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
F 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
G 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
19
(1988) 2 SCC 602
20
(2004) 12 SCC 673
21
(2005) 7 SCC 447
22
H Terrorists and Anti Disruptive Activities (Prevention) Act, 1987
ATMA RAM & ORS. v. STATE OF RAJASTHAN 733
[UDAY UMESH LALIT, J.]
trial be read in evidence in the fresh trial against Jayendra Vishnu Thakur A
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
B
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 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 C
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
D
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 E
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 F
and the judgment of the High Court was supported more strongly by
provisions of Chapter XXVIII. The provisions of Sections 366 to 368
and Sections 386 and 391 are quoted here for ready reference:-
“366. Sentence of death to be submitted by Court of Session
for confirmation – (1) When the Court of Session passes a G
sentence of death, the proceedings shall be submitted to the High
Court, and the sentence shall not be executed unless it is confirmed
by the High Court.
23
Paras 8 & 9 of Jayendra Vishnu Thakur vs. State of Maharashtra (supra) H
734 SUPREME COURT REPORTS [2019] 5 S.C.R.
A (2) The Court passing the sentence shall commit the convicted
person to jail custody under a warrant.
367. Power to direct further inquiry to be made or additional
evidence to be taken – (1) If, when such proceedings are
submitted, the High Court thinks that a further inquiry should be
B made into or additional evidence taken upon, any point bearing
upon the guilt or innocence of the convicted person, it may make
such inquiry or take such evidence itself, or direct it to be made or
taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the
C convicted person may be dispensed with when such inquiry is
made or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by
the High Court the result of such inquiry or evidence shall be
certified to such Court.
D 368. Power of High Court to confirm sentence or annual
conviction – In any case submitted under section 366, the
High Court –
(a) may confirm the sentence, or pass any other sentence
warranted by law, or
E
(b) may annul the conviction, and convict the accused of
any offence of which the Court of 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:
F
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.
G 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 –
H
ATMA RAM & ORS. v. STATE OF RAJASTHAN 735
[UDAY UMESH LALIT, J.]
(a) in an appeal from an order of acquittal, reverse such order A
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 B
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
C
(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 –
(i) reverse the finding and sentence and acquit or discharge D
the accused or order him to be re-tried by a Court
competent to try the offence, or
(ii) Alter the finding maintaining the sentence, or
(iii) With or without altering the finding alter the nature or the
extent, or the nature and extent, of the sentence, so as to E
enhance or reduce the same;
(d) in an appeal from any other order alter or reverse such order;
(e) Make any amendment or any consequential or incidental order
that may be just or proper: F
Provided that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause against such
enhancement:
Provided further that the Appellate Court shall not inflict greater
punishment for the offence which is in its opinion the accused G
has committed, than might have been inflicted for that offence
by the Court passing the order or sentence under appeal.
391. Appellate Court may take further evidence or direct
it to be taken – (1) In dealing with any appeal under this Chapter,
H
736 SUPREME COURT REPORTS [2019] 5 S.C.R.
A the Appellate Court, if it thinks additional evidence to be necessary,
shall record its reasons and may either take such evidence itself,
or direct it to be taken by a Magistrate, or when the Appellate
Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session
B or the Magistrate, it or he shall certify such evidence to the
Appellate Court, and such Court shall thereupon proceed to dispose
of the appeal.
(3) The accused or his pleader shall have the right to be present
when the additional evidence is taken.
C (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
D 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
E 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
F 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 entitles the Appellate Court to
take further evidence or direct such further evidence to be taken. Section
G 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
H
ATMA RAM & ORS. v. STATE OF RAJASTHAN 737
[UDAY UMESH LALIT, J.]
XXIX of the Code. If the power can go to the extent of ordering a 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.
B
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 C
cases, and not unless the appellate Court is satisfied that the Court
trying the proceeding had no 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 D
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 E
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 F
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, G
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
24
AIR (1951) Cal.305 H
738 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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
B lead on the earlier occasion. The evidence in the form of testimony of
those twelve witnesses was led and those witnesses were cross-
examined. There was no infirmity except the one that the evidence was
not led in the presence of the appellants. The remedy proposed was
only to rectify such infirmity, and not to enable the Prosecutor to rectify
defects in the evidence.
C
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
D 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
E is subserved and at the same time the accused will have every right and
opportunity to watch the witnesses deposing against them, watch their
demeanor and instruct their counsel properly so that said witnesses can
be effectively cross-examined. In the process, the interest of the accused
would also stand protected. On the other hand, if we were to accept the
submission that the proceedings stood vitiated and, therefore, the High
F 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
G 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
H affirm the view taken by the High Court and dismiss these appeals. The
ATMA RAM & ORS. v. STATE OF RAJASTHAN 739
[UDAY UMESH LALIT, J.]
restraint which we had placed on the Trial Court not to pronounce the A
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 B
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. C
Kalpana K. Tripathy Appeals dismissed.
D
E
F
G
H
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