2019 Supreme(SC) 435

SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, JJ.
ATMA RAM AND ORS. - Appellants
VERSUS
STATE OF RAJASTHAN - Respondent
CRIMINAL APPEAL Nos.656-657 OF 2019 (Arising out of Special Leave Petition (Criminal) No.809-810 of 2019)
Decided on : 11-04-2019

IMPORTANT POINTS
(1) It is certainly in societal interest that guilty must be punished and at the same time procedural requirements which ensure fairness in trial must be adhered to.
(2) Order of retrial of a criminal case is not to be taken resort to easily and must be made in exceptional cases.
(3) Recording of evidence in absence of accused in against law.

Headnote:(A) Indian Penal Code, 1860 – Sections 147, 148, 452, 447, 302 read with Section 149 and Section 323 read with Section 149 – Murder, hurt and house trespass – Common object – Death sentence reversed by High Court with direction to Trial Court to re-examine witnesses – Four persons of a family were done to death – It is certainly in societal interest that guilty must be punished and at the same time procedural requirements which ensure fairness in trial must be adhered to – If there was an infraction which otherwise does not vitiate trial by itself, attempt must be to remedy the situation to the extent possible so that interests of accused as well as societal interest are adequately safeguarded – Very same witnesses were directed to be de novo examined which would ensure that interest of prosecution is subserved and at the same time accused will have every right and opportunity to watch witnesses deposing against them, watch their demeanor and instruct their Counsel properly so that said witnesses can be effectively cross-examined – In the process, interest of accused would also stand protected – Order and directions passed by High Court completely ensure that a fair procedure is adopted and depositions of witnesses, after due distillation from their cross-examination can be read in evidence – No reason to interfere with order passed and directions issued by High Court in present matter – View taken by High Court affirmed and appeals dismissed. (Paras 26 and 26)

       (B) Criminal Procedure Code, 1973 – Sections 273, 299 and 317 – Recording of evidence – In the circumstances mentioned in said Sections 299 and 317, Courts would be justified in recording evidence in absence of accused – However, in present case, there was neither any willingness on part of appellants nor any order or direction by trial Court that evidence be recorded in absence of Appellants – Matter would not come within scope of latter part of Section 273 and it cannot be said that there was any dispensation as contemplated by said Section – There was no dispensation and yet evidence was recorded without ensuring presence of accused – High Court was absolutely right in concluding that Section 273 stood violated in present matter and that there was infringement of salutary principle under Section 273. (Para 18)

       (C) Criminal Procedure Code, 1973 – Section 386 – Retrial of case – Order of retrial of a criminal case is not to be taken resort to easily and must be made in exceptional cases – If power can go to the extent of ordering a complete re-trial, exercise of power to a lesser extent that is, ordering de novo examination of twelve witnesses with further directions as High Court has imposed in present matter, was certainly within powers of High Court – Order passed by High Court in present matter was not to enable Prosecutor to rectify defects or infirmities in evidence or to enable him to lead evidence which he had not cared to lead on earlier occasion – Evidence in form of testimony of those twelve witnesses was led and those witnesses were cross-examined – There was no infirmity except one that evidence was not led in presence of appellants – Remedy proposed was only to rectify such infirmity and not to enable Prosecutor to rectify defects in evidence – There is no infraction or jurisdictional error on part of High Court. (Paras 22 and 23)

       Facts of Case:

       Trial Court by its judgment and order dated 03.11.2017 found that prosecution had proved case against appellants beyond reasonable doubt and convicted appellants for offences punishable under Sections 147, 148, 452, 447, 302 read with Section 149 and Section 323 read with Section 149 IPC. Matter was then heard on sentence. Trial Court imposed death sentence upon appellants, subject to confirmation by High Court. High Court quashed and set aside judgment passed by the Trial Court. Decision of High Court is presently under challenge.

       Findings of Court:

       No reason to interfere with the order passed and directions issued by High Court in present matter. We affirm the view taken by High Court and dismiss these appeals. Restraint which we had placed on Trial Court not to pronounce judgment hereby stands vacated. Trial Court is now free to take the matter to its logical conclusion.

       Result : Appeals dismissed.