Case Note & Summary
The Supreme Court considered appeals against the High Court's order directing a partial re-trial in a murder case where 12 prosecution witnesses were examined in the absence of the accused, in violation of Section 273 of the Code of Criminal Procedure, 1973. The appellants, convicted and sentenced to death by the trial court, argued that the entire trial was vitiated due to this procedural irregularity. The High Court, while acknowledging the violation, declined to set aside the entire trial and instead ordered re-recording of the statements of those 12 witnesses afresh in the presence of the accused, while retaining the rest of the evidence. The Supreme Court upheld this approach, holding that Section 273 is mandatory but its breach does not automatically vitiate the trial; the court must consider the prejudice caused. Since the appellants' counsel had cross-examined the witnesses and no substantial prejudice was demonstrated, a partial re-trial was an appropriate remedy to cure the defect without causing a complete miscarriage of justice. The Court directed the trial court to complete the re-trial expeditiously.
Headnote
A) Criminal Procedure - Section 273 CrPC - Mandatory Nature - Section 273 of the Code of Criminal Procedure, 1973 requires all evidence to be taken in presence of accused, except as otherwise expressly provided - The provision is mandatory, but its violation does not automatically vitiate the trial; the court must assess prejudice caused to the accused (Paras 7-9). B) Criminal Procedure - Re-trial - Partial Re-trial - Section 386(b) CrPC - The High Court can order a de novo trial or partial re-trial to cure procedural defects - In this case, the High Court directed re-recording of statements of 12 witnesses who were examined in absence of accused, while retaining other evidence - Such partial re-trial is permissible to do complete justice and avoid wholesale vitiation of trial (Paras 9-11). C) Criminal Procedure - Prejudice - Absence of Accused - The recording of evidence without ensuring presence of accused is a serious irregularity, but if the accused's counsel cross-examined witnesses and no prejudice is shown, the trial may not be vitiated - However, in this case, the High Court found that the irregularity warranted a partial re-trial to protect the interests of both accused and victims (Paras 7-10).
Issue of Consideration
Whether the trial stands vitiated due to recording of evidence in absence of accused in violation of Section 273 CrPC, and whether a partial re-trial can be ordered
Final Decision
The Supreme Court dismissed the appeals and upheld the High Court's order directing a partial re-trial, i.e., re-recording of statements of 12 witnesses in presence of accused, while retaining other evidence. The trial court was directed to complete the re-trial expeditiously.
Law Points
- Section 273 CrPC is mandatory
- violation of Section 273 does not automatically vitiate trial
- partial re-trial permissible in exceptional circumstances
- de novo trial can be ordered to cure procedural defect
