S. 273 CrPC | Witness Evidence Can Be Recorded Before Accused's Counsel, Even When Accused Exempted From Personal Appearance: Kerala High Court

The petitioner was charged with offenses under Sections 354(A)(1)(i), 354(D)(1)(i), 511 read with Section 376 of the Indian Penal Code and Section 9 read with (f), (l), (p), Section 10, 11 read with Section 12 of the Protection of Children from Sexual Offences Act, 2012.

Subsequently, a summons was issued to CW1 and the case was adjourned to 21.09.2023. On that day, while the petitioner was present in court, CW1 was absent, and a summons was issued to CW2 along with a bailable warrant for CW1.

The matter was adjourned to 16.10.2023, and the petitioner appeared through counsel to pray that the case be adjourned to any date after three weeks.

The special court recorded the chief examination of CW1 who was examined as PW1 with the matter being adjourned to 08.11.2023 for cross examination.

The petitioners approached the high court challenging the proceedings in examining PW1 in the absence of the petitioner.

They relied on Section 273 of the CrPC to contend that the recording of evidence in a criminal trial shall be in the presence of the accused. It was also submitted that it is only when the personal appearance of the accused is dispensed with in the circumstances contemplated by those provisions as per Sections 299 and 317 that the deposition of witnesses can be recorded in the absence of the accused.

The respondent relied on Section 309 to argue that the provisions of that Section indicate that when witnesses are in attendance no adjournment or postponement shall be granted without examining them except for special reasons to be recorded in writing. The court examined Section 273 which states that,

“Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.” (emphasis applied)”.

The court maintained that the reading of the provision stated that where the personal attendance of the accused is dispensed with evidence can be recorded in the presence of his pleader.

Additionally, the court clarified that while the normal rule was that the evidence in a criminal trial must be recorded in the presence of the accused, the evidence of witnesses can be recorded in the presence of the counsel for the accused even in situations where the court grants exemption from personal appearance to the accused even of a day.

Accordingly, the petition was dismissed.

Counsel for Petitioner: Advocates SS Aravind and MV Amaresan

Counsel for Respondent: Advocate Vipin Narayan

Citation: 2024 LiveLaw (Ker) 36

Case Title: Manoj TK v. State of Kerala

Case Number: Crl MC No. 9412 of 2023