Recording examination in chief of witnesses in absence of advocate of accused without recording their cross examination is illegal

In our view, the Trial Court ought not to have recorded the evidence in this fashion. Before recording the examination-inchief of the first prosecution witness, after finding that the appellants-accused had not engaged any Advocate, the Trial Court ought to have provided a legal aid Advocate to the appellants accused so that the evidence of the prosecution witnesses could have been recorded in the presence of the Advocate representing the appellants-accused. The order sheet enclosed with the report does not record that the appellants declined to accept the services of a legal aid lawyer. {Para 5}

6. When the examination-in-chief of a material prosecution witness is being recorded, the presence of the Advocate for the accused is required. He has a right to object to a leading or irrelevant question being asked to the witness. If the trial is conducted in such a manner, an argument of prejudice will be available to the accused. This is a warrant case. In a warrant case, in view of the proviso to the sub-section (3) of Section 242 of the Code of Criminal Procedure, 1973 (for short, “the Cr.PC”), the learned Magistrate, by recording reasons, can permit cross examination of a witness to be postponed till a particular witness or witnesses are examined. However, in the present case, no such order was passed by the learned Magistrate. The normal rule is that witnesses shall be examined in the order laid down in Section 138 of the Indian Evidence Act, 1872. Sub-section (3) of Section 242 of the Cr.PC is the exception to the rule.

7. Therefore, recording only the examination-in-chief of 12 prosecution witnesses without recording cross-examination is contrary to the law.

THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO(S).1664-1665 OF 2024

EKENE GODWIN & ANR. Vs STATE OF TAMIL NADU

Dated: MARCH 18, 2024.