Will The Trial Be Vitiated If The Evidence Of Witnesses Were Taken In The Absence Of Accused?

Will the entire trial and conviction be vitiated for non-compliance of Section 273 IPC? Can de novo trial be ordered if it is found that during the trial several witnesses were examined in absentia of the accused ? The Supreme Court is considering this issue in Atma Ram vs. State of Rajasthan, and has stayed the pronouncement of judgment by the Trial Court after conducting de novo trial. Senior Advocate Ranjit Kumar has been appointed as Amicus Curiae by the bench comprising of Justice Uday Umesh Lalit and Justice Indu Malhotra.

The court has posted the matter on 13th March for further consideration. It said: “Once we are seized of the matter, in the fitness of things, let there not be any pronouncement of the judgment. We therefore, direct the trial court not to pronounce the judgment and await further orders by this Court.” High Court Ordered De Novo Trial Atma Ram and three others were convicted by the Trial Court and were sentenced to death. Before the Rajasthan High Court, they took a contention that entire trial is vitiated because the trial court recorded statements of a large number of prosecution witnesses without ensuring their presence in the proceedings. Order sheets of the Trial Court also categorically mentioned that the accused had not been brought to the court from the prison. The High Court held that the proceedings undertaken by the trial court to the extent of recording of the statements of witnesses in absentia of the accused cannot be considered to be lawful as they were held contrary to the mandate of Section 273 CrPC. The High Court had observed:

“The accused were in judicial custody. No satisfaction was recorded by the court in any of the proceedings that presence of the accused was not necessary in the court. Rather, the trial court, time and again intimated the jail authorities that the accused should be brought to the court but then failed to ensure that the direction is complied. Needless to say that the right of the accused to see the evidence being taken in their presence is recognized as an absolute right by Section 273 Cr.P.C. and the same emanates from the principles of natural justice and fair trial. Thus, without any doubt, statements of the witnesses recorded by the trial court in absence of the accused more particularly when they were in judicial custody cannot be treated as having been recorded strictly in accordance with law.”

But, while holding that the conviction recorded was unsustainable it also considered the issue whether, the entire trial should be declared vitiated; or that the matter should be remanded to the trial court for recording the statements of these witnesses afresh by exercising powers under Section 391 Cr.P.C. or that the impugned judgment should be set aside and the de-novo trial directed by exercising powers under Section 386(b) Cr.P.C? The court held that there is no straightjacket formula in any of the precedent that a de-novo trial cannot be directed in any condition as it would render Section 386(b) Cr.P.C. redundant.

The court then ordered that fresh trial/de-novo by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court. It said: “We feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de-novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court.”