Examination of Witness in Absence of Accused Violates Section 273 CrPC but Constitutes Curable Irregularity.

The Appellant was convicted by the Special Judge (POCSO Act), Datia, for the kidnapping, rape, and murder of a nine-year-old girl. The Trial Court imposed multiple sentences, including the death penalty under Section 302 of the IPC and Section 5(L)/6 of the POCSO Act

The prosecution's case rested on the recovery of the victim's body in a field and testimony from a cousin who claimed the Appellant led the victim away shortly before her disappearance

During the appellate proceedings, it was discovered that a vital witness, the Investigating Officer (PW-20), had been examined and cross-examined while the Appellant was in jail and not physically present in court or connected via video conferencing

The High Court heard the statutory death sentence reference alongside the Appellant's criminal appeal

1. Whether the examination of a material witness in the absence of the accused violates the mandatory requirements of Section 273 of the CrPC

2. Whether such a procedural lapse necessitates an acquittal or if it is a curable irregularity under the law

The court primarily applied Section 273 of the CrPC, which mandates that all evidence must be taken in the presence of the accused except where expressly exempted

It further relied on Section 461 and Chapter XXXV of the CrPC regarding irregular proceedings and the "harmless error" doctrine

The court heavily cited the precedent of Atma Ram v. State of Rajasthan (2019), which establishes that while the right of an accused to watch prosecution witnesses is valuable, an infringement of Section 273 is a curable defect rather than an automatic ground for acquittal, provided no inherent prejudice is left unaddressed

The High Court observed that the Trial Court recorded the evidence of the Investigating Officer (PW-20) on two consecutive days without the Appellant being produced from jail

The court noted that there was no application under Section 317 of the CrPC to dispense with the Appellant's attendance, nor was there any record of the Appellant disrupting proceedings or providing consent for the examination to proceed in his absence

The court reasoned that the Investigating Officer's testimony is a critical component of the trial, and conducting it in the Appellant's absence caused significant procedural prejudice

However, following the Atma Ram framework, the court determined that the trial was not fully vitiated; instead, the error could be rectified by a limited remand to re-examine the specific witness in the presence of the accused to ensure the "salutary principle" of Section 273 is upheld

The High Court directed the Trial Court to re-examine PW-20 afresh in the personal presence of the Appellant. The court ordered that this process, including a supplementary statement under Section 313 of the CrPC and final arguments, must be completed within a strict timeline, with a new judgment to be pronounced on or before August 19, 2026