The Supreme Court observed that the presence of the Advocate for the accused is required while recording of the examination-in-chief of a material prosecution witness.

The Court was dealing with appeals filed by two accused persons who were prosecuted for the offences punishable under Sections 419 and 420 of the Indian Penal Code (IPC) and Section 66, read with Sections 43(J) and 66D of the Information Technology (Amendment) Act, 2008.

The two-Judge Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan observed, “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. … The learned Judge seems to have adopted this method only because the High Court had fixed a time-bound schedule for the disposal of the case. He could have always sought an extension of time from the High Court. Therefore, recording only the examination-in-chief of 12 prosecution witnesses without recording cross-examination is contrary to the law.”

Advocate Pranesh Rajamanickam appeared on behalf of the appellants while Senior AAG V. Krishnamurthy appeared on behalf of the respondent.

Facts of the Case -

The High Court rejected the application preferred by appellants/accused for regular bail. The Trial Court had recorded the examination-in-chief of 12 prosecution witnesses one after the other on different dates without recording their cross-examination and hence, the Apex Court requested the Trial Judge to submit a report. The report recorded that the evidence of the prosecution witnesses was recorded in the presence of the accused but their Advocate was not present as they had not engaged any Advocate.

The Supreme Court in view of the above facts noted, “In our view, the Trial Court ought not to have recorded the evidence in this fashion. Before recording the examination-in chief 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.”

The Court further said that when the examination-in-chief of a material prosecution witness is being recorded, the presence of the Advocate for the accused is required and 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”, it added.

Furthermore, the Court considering the facts of the case and the nature of the offences alleged against the appellants and also considering the fact that the appellants have been in custody since January 8, 2023, said that a case is made out for enlarging the appellants on bail, pending the trial subject to stringent terms and conditions including the condition of deposit of the Passports of the appellants with the Trial Court.

“To avoid any argument of prejudice, we direct the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, to conduct a de novo trial by again examining the prosecution witnesses who have been already examined. … We direct that the appellants shall be produced before the Trial Court on 27th March 2024 at 10:30 a.m. On that day, the Trial Court will appoint a legal aid Advocate to espouse the cause of the appellants … We direct the Trial Court to enlarge the appellants on bail on appropriate stringent terms and conditions, till the conclusion of the trial, after giving an opportunity of being heard to the learned Prosecutor on the terms and conditions of the bail”, it directed.

Accordingly, the Apex Court allowed the appeals.

Cause Title- Ekene Godwin & Anr. v. State of Tamil Nadu (Neutral Citation: 2024 INSC 229)


Appellants: Advocates Pranesh Rajamanickam, Alia Banozaidi, Sonali Gambhir, Rohan Gupta, Varun Kumar, AOR Shashi Kiran, Advocates Arjun Sain, Nishant Kumar, Akash Vats, and Raavi Jotwani.

Respondent: Sr. A.A.G. V. Krishnamurthy, AOR D. Kumanan, Advocates Deepa S., and Sheikh F. Kalia.

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