Supreme Court Upholds Partial Retrial for Witness Examination in Criminal Cases

Date of the Judgment: 11 April 2019

Citation: 2019 INSC 337

Judges: Uday Umesh Lalit, J., Indu Malhotra, J.

Can a criminal trial be deemed invalid if some witness testimonies are recorded in the absence of the accused? The Supreme Court of India recently addressed this crucial question in a case where the trial court recorded statements of twelve witnesses without ensuring the presence of the accused. The court examined whether this procedural lapse warranted a complete quashing of the trial or if a partial retrial limited to re-recording the testimonies of those witnesses would suffice. The judgment was delivered by a two-judge bench comprising Justice Uday Umesh Lalit and Justice Indu Malhotra.

Case Background

On 13 October 2013, an FIR No. 493 was registered at Police Station Bhadara, District Hanumangarh, Rajasthan. The FIR was filed by one Kailash, who reported that seven named individuals, including the four appellants (Atma Ram, Omprakash, Leeladhar, and Shravan Kumar), along with some unknown persons, attacked his family while they were harvesting crops. The attack resulted in the deaths of Kailash’s father, Bhanwarlal, and brother, Pankaj, at the scene, and Kailash himself sustained injuries. The same group then allegedly went to the village and assaulted the inhabitants of a house, leading to the death of Kailash’s grandfather, Momanram. Kailash later died from his injuries.

Following the investigation, a charge-sheet was filed against the four appellants. During the trial, the appellants, who were in judicial custody, were not produced in court when the examination-in-chief of several prosecution witnesses was recorded. This procedural lapse became a central issue in the subsequent legal proceedings.

Timeline

Course of Proceedings

The Trial Court convicted the appellants for offenses under Sections 147, 148, 452, 447, 302 read with Section 149, and Section 323 read with Section 149 of the Indian Penal Code (IPC), sentencing them to death, subject to confirmation by the High Court. The case was then referred to the High Court for confirmation of the death sentence, and the appellants also filed a criminal appeal.

The appellants argued before the High Court that the trial was vitiated because the statements of twelve witnesses were recorded without their presence, violating Section 273 of the Code of Criminal Procedure, 1973 (CrPC). The High Court acknowledged this procedural lapse. However, instead of ordering a complete retrial, the High Court directed a partial retrial, ordering the Trial Court to re-record the statements of the twelve witnesses in the presence of the accused. The High Court relied upon the precedents of State of Madhya Pradesh vs. Bhooraji, Pandit Ukha Kolhe vs. The State of Maharashtra and Jayendra Vishnu Thakur vs. State of Maharashtra and Anr

Legal Framework

The core legal provision at the heart of this case is Section 273 of the Code of Criminal Procedure, 1973 (CrPC). This section states:

“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 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.]”

This provision mandates that all evidence during a trial must be recorded in the presence of the accused, ensuring their right to observe the proceedings and instruct their counsel. The exceptions to this rule are expressly provided in Sections 299 and 317 of the CrPC.

• Section 299, CrPC: Allows for the recording of evidence in the absence of the accused if they have absconded and there is no immediate prospect of their arrest.
• Section 317, CrPC: Permits the court to dispense with the personal attendance of the accused if it is not necessary for the interests of justice, or if the accused disrupts the proceedings, provided they are represented by a pleader.

Arguments

Appellants’ Arguments:

• The appellants argued that Section 273 of the CrPC is mandatory, with exceptions only as expressly provided in Sections 299 and 317 of the CrPC.
• They contended that the right of the accused to observe witnesses is a valuable right, and its infringement is gravely prejudicial.
• A retrial should only be ordered in rare circumstances, and not to rectify the prosecution’s errors.
• They further argued that a partial retrial cannot be ordered.

State’s Arguments:

• The State accepted the High Court’s conclusion that Section 273 is mandatory.
• It argued that the violation of Section 273 should not vitiate the entire trial, relying on Section 279 of the CrPC, which states that evidence has to be given in a language understood by the accused.
• The State submitted that Sections 460 to 465 of the CrPC provide remedies for breaches of the Code and that the contravention of Section 273 is not of such magnitude as to vitiate the proceedings.
• It was submitted that the theory of harmless error is embedded in criminal jurisprudence and the error in this matter comes within such category.
• The State contended that the partial retrial ordered by the High Court was a proper remedy that ensured no prejudice to the accused.

Amicus Curiae’s Arguments:

• The Amicus Curiae argued that Section 273 is mandatory only to the extent that evidence must be taken in the presence of the accused or their pleader, and that physical presence is not mandatory.
• Non-compliance with Section 273 is a curable irregularity and does not vitiate the entire trial.
• The High Court has the power to order a retrial, record additional evidence, or direct further inquiry under Sections 366 to 371 and 372 to 394 of the CrPC.
• The criminal jurisprudence recognizes rights of victims in a criminal trial 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.

Submissions of Parties

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

✓ Whether the trial was vitiated by the fact that the statements of twelve witnesses were recorded without ensuring the presence of the appellants in court, and if so, what is the appropriate remedy.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

On the Mandatory Nature of Section 273 CrPC:

• State of Maharashtra and another vs. Praful B. Desai (2003) 4 SCC 601 (Supreme Court of India): Discussed whether recording evidence through video conferencing satisfies the mandate of Section 273 of the CrPC.
• Sakshi and others vs. Union of India (2004) 5 SCC 518 (Supreme Court of India): Addressed the need to protect vulnerable witnesses during testimony.
• Mahendra Chawla vs. Union of India (2018) 15 SCALE 497 (Supreme Court of India): Reaffirmed the importance of witness examination in the presence of the accused.
• Jayendra Vishnu Thakur vs. State of Maharashtra (2009) 7 SCC 104 (Supreme Court of India): Highlighted the valuable right of the accused to watch prosecution witnesses.

On the Exceptions to Section 273 CrPC:

• Section 299 of the Code of Criminal Procedure, 1973: Pertains to recording of evidence in the absence of the accused when they have absconded.
• Section 317 of the Code of Criminal Procedure, 1973: Allows the court to dispense with the personal attendance of the accused under certain circumstances.

On the Power of Appellate Courts:

• Sections 366 to 371 of the Code of Criminal Procedure, 1973: Deals with the submission of death sentences for confirmation.
• Sections 372 to 394 of the Code of Criminal Procedure, 1973: Deals with appeals.
• Section 386 of the Code of Criminal Procedure, 1973: Enumerates the powers of the Appellate Court.
• Section 391 of the Code of Criminal Procedure, 1973: Empowers the Appellate Court to take further evidence.

On Retrials:

• Pandit Ukha Kolhe vs. The State of Maharashtra (1964) 1 SCR 926 (Supreme Court of India): Discussed the circumstances under which a retrial can be ordered.
• State of Madhya Pradesh vs. Bhooraji (2001) 7 SCC 679 (Supreme Court of India): Considered the issue of retrial and additional evidence.

Other Provisions:

• Section 279 of the Code of Criminal Procedure, 1973: Deals with the language of evidence.
• Sections 460 to 465 of the Code of Criminal Procedure, 1973: Stipulate remedies for breaches of provisions of the Code.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied upon State of Maharashtra and another vs. Praful B. Desai [ (2003) 4 SCC 601 ]* to discuss the permissibility of recording evidence through video conferencing.
• The Court considered Sakshi and others vs. Union of India [ (2004) 5 SCC 518 ]* to understand the need to protect vulnerable witnesses during testimony.
• The Court relied upon Mahendra Chawla vs. Union of India [ (2018) 15 SCALE 497 ]* to reaffirm the importance of witness examination in the presence of the accused.
• The Court distinguished the facts in Jayendra Vishnu Thakur vs. State of Maharashtra [ (2009) 7 SCC 104 ]*, stating that the prejudice in that case was inherent due to the denial of cross-examination, which was not the situation in the present case.
• The Court referred to Pandit Ukha Kolhe vs. The State of Maharashtra [ (1964) 1 SCR 926 ]* to discuss the circumstances under which a retrial can be ordered.
• The Court referred to State of Madhya Pradesh vs. Bhooraji [ (2001) 7 SCC 679 ]* to discuss the issue of retrial and additional evidence.

What weighed in the mind of the Court?

The Supreme Court was primarily concerned with balancing the procedural fairness required under Section 273 of the CrPC with the need to ensure that justice is served. The Court recognized that while the presence of the accused during the recording of evidence is a valuable right, its violation does not automatically invalidate the entire trial, especially if the violation can be remedied without causing prejudice to the accused. The Court also considered the societal interest in ensuring that those accused of serious crimes are brought to justice.

The Court emphasized that the High Court’s decision to order a partial retrial was a balanced approach that protected the rights of the accused while also ensuring that the case could proceed. The partial retrial was limited to re-recording the testimonies of the twelve witnesses in the presence of the accused, giving them a full opportunity to observe the witnesses, instruct their counsel, and cross-examine effectively. This approach, the Court reasoned, would rectify the procedural lapse without requiring a complete retrial, which could lead to a miscarriage of justice.

The Court considered alternative interpretations, such as the argument that any violation of Section 273 automatically vitiates the trial, but rejected it. The Court also considered the argument that a complete retrial was necessary, but rejected that too, as it would not be in the interest of justice. The Court held that the High Court’s decision to order a partial retrial was the most appropriate way to balance the rights of the accused with the interests of justice.

The Supreme Court held that the High Court’s order for a partial retrial was justified. The Court reasoned that the procedural lapse of recording evidence without the presence of the accused was a curable irregularity and did not warrant a complete retrial. The court emphasized that the partial retrial, which involved re-recording the testimonies of the twelve witnesses in the presence of the accused, would ensure a fair trial without causing prejudice to either party.

The court quoted from the judgment:

“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 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.”

“The remedy proposed was only to rectify such infirmity, and not to enable the Prosecutor to rectify defects in the evidence.”

The Court also noted that the High Court’s decision was supported by the provisions of Chapter XXVIII (Sections 366 to 371) and Chapter XXIX (Sections 372 to 394) of the CrPC, which empower appellate courts to direct further inquiry, take additional evidence, or order a retrial. The Court also considered the rights of the victims and the societal interest in ensuring that those accused of serious crimes are brought to justice.

The Court rejected the argument that the prejudice to the accused was inherent and stated that the partial retrial would ensure the presence of the accused in the Court, so that they have every opportunity to watch the witnesses deposing in the trial and cross-examine said witnesses.

Key Takeaways

• Accused Presence is Crucial: The judgment underscores the importance of ensuring the presence of the accused during the recording of witness testimonies as mandated by Section 273 of the CrPC.
• Partial Retrial is a Valid Remedy: The Supreme Court has affirmed that in cases of procedural lapses, a partial retrial can be ordered to rectify the error without necessarily invalidating the entire trial.
• Balancing Rights and Justice: The judgment highlights the need to balance the rights of the accused with the interests of justice and the rights of the victims.
• Curable Irregularities: The Court clarified that not all procedural irregularities vitiate the trial, and some can be cured through appropriate remedies.

The judgment has significant implications for future cases, as it sets a precedent for when and how partial retrials can be ordered. It also emphasizes the importance of adhering to procedural requirements while ensuring that justice is not thwarted by technicalities.

Directions

The Supreme Court vacated the restraint order it had placed on the Trial Court and directed the Trial Court to proceed with the matter and bring it to its logical conclusion. The Trial Court was directed to re-record the statements of the twelve witnesses in the presence of the accused, and then proceed with the case.

Specific Amendments Analysis

(No specific amendments were discussed in the judgment.)

Development of Law

The ratio decidendi of the case is that a violation of Section 273 of the CrPC, where evidence is recorded in the absence of the accused, does not automatically vitiate the entire trial. Instead, a partial retrial can be ordered to rectify the procedural lapse, ensuring that the accused is present when the evidence is re-recorded.

This decision clarifies the position of law by providing that a partial retrial is a valid remedy for procedural errors, specifically when witness testimony is recorded in the absence of the accused. This is a departure from a strict interpretation that any violation of Section 273 would invalidate the entire trial.

Conclusion

The Supreme Court upheld the High Court’s decision to order a partial retrial in a case where witness testimonies were recorded without the presence of the accused. The Court clarified that while the presence of the accused during the recording of evidence is mandatory under Section 273 of the CrPC, its violation does not automatically vitiate the entire trial. Instead, a partial retrial limited to re-recording the testimonies of the concerned witnesses is a valid remedy that balances the rights of the accused with the interests of justice. The Court dismissed the appeals and directed the Trial Court to proceed with the matter.