John Fernandes and others vs State

E.S. Da Silva, J.—The petitioners are the accused in Sessions Case No. 15/93 who are facing trial before the Additional District and Sessions Judge, Panaji, for offences punishable under sections 341, 342, 323, 354 and 376 read with section 34 of Indian Penal Code. They have challenged the order of the learned Judge dated 24-8-1993 whereby he has declined to entertain the Petitioner''s learned counsel''s oral request to the effect that the evidence of prosecution witnesses should be taken in the presence of the accused.

The case of the petitioners is that on that day the trial was on and it was fixed for recording the evidence of the prosecutrix, namely, Smt. Kalpana Dulapkar. At that time the learned Judge ordered that the proceedings should go in camera. Accordingly, the learned Judge decided to take up the matter in his chamber. However, before the recording of the deposition of Kalpana started, the Petitioner''s advocate impressed upon the learned Judge that the statements of the witnesses should be recorded in the presence of the accused in terms of section 273 of the Criminal Procedure Code. But the Judge rejected the request and proceeded to record Kalpana''s deposition in the absence of the petitioners. This fact is recorded in the Roznama wherein the learned Judge has made observation that the rejection was due to the fact that there was no sufficient space in the chamber to allow the accused to remain present during the hearing. It is further the case of the petitioners that this circumstance did not appear to be totally correct because there was ample room in the chamber of the learned Judge to accommodate the petitioners who were even willing to stand while the statement of the prosecutrix was being recorded. The recording of the evidence in the circumstances was, according to the petitioners, bad and illegal in clear violation of the mandatory provisions of the law which requires that all the evidence in a criminal case should be recorded in the presence of the accused unless his or their personal appearance is dispensed with.

Shri Lotlikar, learned counsel for the petitioners, has submitted that in short the question posed to the consideration of this Court was to find out as to whether the recording of the prosecutrix''s evidence by the learned Sessions Judge in his chamber by keeping the accused/petitioners away from her and outside the chamber was proper and according to law. The learned counsel submitted that this was not a case of inadvertent mistake on the part of the learned Judge who has been informed and alerted by the petitioners'' learned counsel of the necessity to keep the accused available and in presence of the Court at the time of the recording of evidence of the prosecutrix. In spite of that the learned Judge chose to reject the suggestion made by the petitioners'' counsel and proceeded with the evidence of the prosecutrix in the absence of the accused. The only ground which he stated to take the decision was that there was not sufficient space in his chamber to permit the accused to remain inside. The learned counsel urged that this fact was not actually accurate but irrespective of the genuineness of this reason adduced by the learned Judge the circumstance, if true, would justify that in that case the learned Judge should record evidence of the prosecutrix in the Court room itself although holding the proceedings in camera. The learned counsel has further contended that the witness of the prosecution to be examined on that day was the prosecutrix herself who was the star witness in the case. The learned Judge has no doubt permitted the witness to go outside along with the advocates of both the parties when occasion would arise to identify the accused. According to the learned counsel this procedure was irregular and would not allow to the defence counsel free opportunity and access to the accused during the examination and cross-examination of the prosecutrix. Besides the learned Judge while recording evidence went on mentioning facts narrated by the prosecutrix in relation to each particular accused which were to be identified by her not in his presence because when the prosecutrix was allowed to go out for that purpose the learned Judge continued in his chamber and only the prosecutrix along with the advocates of both the sides were sent outside the chamber for the purpose of their identification.

It was also urged by the learned counsel that section 273, Criminal Procedure Code provides that recording of evidence of prosecution witnesses in accused''s trial should be taken in the presence of the accused except when his or her presence has been dispensed with. It was a mandatory provision which requires to be complied with in the interest of justice and fair play. In the instant case the petitioners had represented to the learned Judge about the necessity of keeping them inside the chamber while the prosecutrix was deposing. The learned Judge rejected such prayer in his discretion but the petitioners immediately challenged and reacted to the exercise of this discretion which according to them was not judicially exercised. Hence the learned counsel concluded that this petition should be allowed and the learned Judge should be directed to record afresh the statement of the prosecutrix besides their right of cross-examination could be exercised.

There is considerable merit in all the submissions advanced by the learned counsel. A plain reading of section 273 of the Criminal Procedure Code makes it clear that this is a mandatory provision which enjoins the Magistrate or Sessions Judge to record the evidence during a trial or other proceedings in the presence of the accused. The only exception to this rule is when the personal attendance of the accused is dispensed with. This means that the evidence in a criminal trial can be recorded in the absence of the accused only at his request because it is only when the accused makes such a request that his presence can in principle, be dispensed with. This being the position it is obvious that it was not proper on the part of the learned Sessions Judge to record the evidence of the prosecutrix which is no doubt expected to be the main witness in the case by keeping the accused away from her even after they requested the learned Judge that they should be allowed to remain present. The reason advanced by the learned Sessions Judge that there was no sufficient place in his chamber is unsatisfactory. Apart from the fact that the petitioners have contested this fact the learned Judge could certainly take the evidence of the prosecution witnesses in that case in the Court room itself by holding the proceedings in camera. I must say that the procedure of recording evidence in criminal trials in chamber is not to be encouraged and as far as possible this evidence, unless there are compelling reasons, should be taken in the Court rooms. The learned Judge was no doubt right "and justified in holding the proceedings in camera in such case of offences which are required to be taken not in the presence of the general public but it does not mean that the proceedings should be taken in his chamber. Hence the reason given by the learned Magistrate to justify the refusal on his part to allow the accused to remain present during the proceeding does not appear to be genuine nor sound. The petitioners are therefore justly aggrieved with such a decision and their learned counsel is justified in canvassing that this type of procedure besides being irregular is likely to cause miscarriage of justice and also mischief to their clients.

I am indeed impressed with the submission advanced by the learned counsel that the curtailment of the accused''s counsel in respect of his free access and communication with the accused during the trial, namely, at the time of recording of the statements of the prosecution witnesses is likely to cause him inconvenience and eventually prejudice them for the purpose of cross-examination of prosecution witnesses. The learned counsel is also right when he contends that this could not be treated as a case of mere irregularity to be condoned. In my view, the procedure followed by the learned Judge is illegal and cannot be sustained. It appears that the learned Judge has deliberately failed to comply with the mandatory provision of the statute. Hence there is no question of such illegality or irregularity to be treated as curable in terms of section 464 or 465 of the Criminal Procedure Code. The petitioners have approached this Court, without delay even before the cross-examination of the prosecutrix had started. There is therefore no reason not to consider the petitioners'' prayer that the examination-in-chief of the prosecutrix already recorded by the learned Judge should be nullified and the learned Judge be directed to record afresh the examination-in-chief of the prosecutrix in the presence of the accused.

Shri Bhobe, learned Public Prosecutor, has fairly conceded that the provision of section 273, Criminal Procedure Code is mandatory and that the learned Judge was required to comply with the same in letter and spirit. He also admitted that the fact of the accused having remained absent during the examination of the prosecutrix could eventually jeopardize their right of defence and difficult the position of their counsel in order to get from them the benefit of full briefing for the purpose of cross- examination of the prosecutrix.

Shri Lotlikar has placed reliance on the observations which appear in Sohoni''s Criminal Procedure Code, Volume IV, at page 2980, while dealing on the Commentary on section 273 of Criminal Procedure Code to the effect that the rule enacted in that section is imperative and its contravention is an illegality not curable u/s 464 or 465. Where the witnesses are not examined in the presence of the accused, the conviction is bad and the accused or his counsel cannot consent to such an irregularity. With regard to the necessity of a fresh examination-in-chief of the prosecution witnesses when evidence was recorded in the absence of the accused consequent upon the immediate challenge to such procedure followed by the learned Sessions Judge on the ground of prejudice, the learned counsel has cited the decision of Punjab and Haryana High Court in Om Parkash Bansal Vs. State, . In the said decision which was dealing with the provisions of section 537 of Criminal Procedure Code which was corresponding to old section 465, the Court has held that the said provisions are generally applied to a case when it is finally disposed of. The section is not intended to apply to a case where the superior Court had been approached immediately after the order contrary to the express provisions of section 95 of Criminal Procedure Code was passed by the trial Magistrate. The ratio of this case is very much to the point in the instant case. There is no doubt in my mind that the entire procedure followed by the learned Additional Sessions Judge being irregular and bad in law the petition has to fully succeed.

In the result the petition is allowed and the Order of the learned Additional Sessions Judge dated 24-8-1993 is hereby quashed and set aside. The learned Additional Sessions Judge is directed to record the statement of the prosecutrix afresh in the presence of the accused although holding the proceedings in camera but making the accused available and present during the examination of the prosecution witnesses in accordance with law.