The High Court of Kerala in a bench comprising the Hon’ble Gopinath P. held that Witness testimony can be recorded in the presence of the accused's lawyer, even if the Court provides a one-day exemption from personal appearance.
Brief Facts:
The Petitioner is accused of violation under Sections 354 A (1)(1), 354 D (9),(l),(i), 511 read with 376 of the Indian Penal Code and Section 9 read with (I), (f), (p), (m) Sections 10, 11 read with Section 12 of the Protection of Children from Sexual Offences Act. Charges were filed, and a summons was issued to CW1, who was absent. The case has been delayed until November 8, 2023, for cross-examination. The Petitioner argues that the Fast Track Special Court's decision to examine PW1 in his absence breaches the Code of Criminal Procedure.
Contentions of the Petitioner:
Sri. S. Aravind, the Accused's Counsel, contends that evidence in a criminal trial must be recorded in the accused's presence, citing Section 273 Cr.P.C. To buttress this thesis, the attorney cites Supreme Court decisions and references.
Contentions of the Respondent:
Sri. Vipin Narayanan contends that the practice of permitting examination in chief of PW1 in the absence of the accused is not illegal. To back up his claim, he references Section 309 of the Criminal Procedure Code, Supreme Court decisions, and Supreme Court precedents.
Observations of the Court:
The Special Judge's technique for examining without the accused is not illegal, and evidence can only be recorded when the accused's appearance is waived. The Court did not conclude that Sections 299 and 317 Cr.P.C. are the exclusive exceptions to Section 273. The Court further stated that earlier decisions do not apply to the current case.
The decision of the Court:
The Judgement dismisses the Crl. M.C., stating that evidence in a criminal trial can be recorded in the presence of the accused's counsel, even if Court exemptions apply.
Case Title: Manoj T K v State of Kerala
Coram: Hon’ble Justice Gopinath P.
Case No.: CRL.MC No. 9412 of 2023
Advocate for Petitioner: Adv. S.S. Aravind, Adv. M.V. Amaresan
Advocate for Respondent: Public Prosecutor
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