Summary
Recording twelve prosecution witnesses without producing the accused in court, despite an initial objection and without dispensing with attendance, violated Section 273. The Supreme Court nevertheless upheld a limited retrial requiring those witnesses to testify afresh in the accused’s presence, rather than automatic acquittal. The High Court’s death-reference and appellate powers supported that tailored remedy, which restored fair examination without giving the prosecution a chance merely to repair evidentiary deficiencies.
Issues
- Whether recording evidence without the accused’s presence complied with Section 273.
- Whether the violation required acquittal or could be remedied through limited re-examination.
- Whether the High Court had power to order the limited retrial.
Provisions considered
- Section 273, Code of Criminal Procedure, 1973Evidence recorded without the accused, any applicable exception or dispensation infringed the statutory right to be present. (¶ 17–18)
- Sections 367 and 368, Code of Criminal Procedure, 1973The High Court’s death-reference powers supported further evidence and retrial as appropriate remedies. (¶ 21–22)
- Sections 386(b)(i) and 391, Code of Criminal Procedure, 1973Appellate powers to direct retrial and further evidence encompassed the narrower order to re-examine the affected witnesses. (¶ 21–22)
Held
- Neither the express exceptions nor dispensation of attendance applied. An initial objection was recorded, and there was no willingness or court direction authorising evidence in the accused’s absence. Section 273 was violated; whether dispensation could ever be implied was left undecided. (¶ 17–18)
- That infringement did not require automatic termination of the prosecution. Re-examination with the accused present, able to observe witnesses, instruct counsel and cross-examine, remedied the defect without the prejudice present where unavailable witnesses’ earlier testimony is simply adopted. (¶¶ 19–20, 25)
- The High Court exercised both death-reference and appellate jurisdiction. Powers extending to complete retrial included a limited fresh examination of the twelve witnesses, followed by examination of the accused and a defence opportunity. (¶¶ 10, 21–22)
- Retrial remains exceptional and cannot simply repair prosecution omissions. Here the witnesses had already testified and been cross-examined; the remedy corrected their examination in the accused’s absence, rather than evidentiary shortcomings. (¶ 23–25)
- The decision concerned procedural fairness only and expressed no view on the prosecution’s merits. The trial court could pronounce judgment after the limited retrial. (¶ 26–27)
Result
Appeals dismissed and High Court’s limited-retrial directions affirmed. Supreme Court restraint on pronouncement of judgment vacated; trial court permitted to conclude the case independently on merits.