ATMA RAM & ORS. versus STATE OF RAJASTHAN

Citation: [2019] 5 S.C.R. 714 · Decided: 11-04-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Dismissed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 5 S.C.R.
ATMA RAM & ORS.
v.
STATE OF RAJASTHAN
(Criminal Appeal Nos. 656-657 of 2019)
APRIL 11, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Code of Criminal Procedure, 1973:
ss. 273, 299, 317, 461, Chapters XXVIII and XXIX –
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
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.
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
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:
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,
   [2019] 5 S.C.R. 714
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the exceptions to the application of Section 273 must be those
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
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
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
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
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
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]
Jayendra Vishnu Thakur v. State of Maharashtra
and Anr. (2009) 7 SCC 104:[2009] 8 SCR 591
– distinguished.
ATMA RAM & ORS. v. STATE OF RAJASTHAN
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
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 th

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