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Navigating Legal Challenges: Recording Of Evidence In The Absence Of The Defendant’s Advocate Resulted In The Need For A De-novo Trial

Varsha Rajesh ,
  05 April 2024       Share Bookmark

Court :
Supreme Court of India
Brief :

Citation :
Criminal Appeal No(s).1664-1665 Of 2024




18th MARCH 2024








The subject of the case involves criminal appeals related to offenses punishable under Sections 419 and 420 of the Indian Penal Code, 1860, and Section 66, read with Sections 43(J) and 66D of the Information Technology (Amendment) Act, 2008. Specifically, the judgment addresses issues related to the procedure followed during the trial, including the recording of evidence without the presence of the accused's advocate and the subsequent need for a de novo trial. 



  •  Section 419: Punishment for cheating by impersonation - This section addresses situations in which someone intentionally replaces someone else, poses as someone else, or engages in any other dishonest behaviour to deceive another person. A fine, a three-year prison sentence, or both could be imposed as punishment for this kind of offense.
  • Section 420: Cheating and dishonestly inducing delivery of property - This section addresses situations in which someone deceives another and then dishonestly persuades the victim to deliver property to someone else, create, alter, or destroy all or a portion of a valuable security, or anything sealed or signed that has the potential to be turned into a valuable security. The punishment for such an offense may extend to imprisonment for a term which may extend to 7 years and shall also be liable to fine.


  • Section 66: Computer-related offenses - This section addresses a variety of computer-related offenses, including illegal access to computer systems, hacking, and tampering with computer source materials. Offenses under this section may be punished with a fine of up to five lakh rupees, three years in prison, or both.
  • Section 43(J): Penalty for misrepresentation - The punishments for several infractions, such as deception, breaking into computers without authorization, introducing pollutants, etc., are outlined in this section. Under this section, there are several possible penalties: a fine of up to five lakh rupees, a term of imprisonment up to three years, or both.
  • Section 66D: Penalties for exploiting computer resources to impersonate someone in order to cheat - This section addresses situations in which someone impersonates someone else while using a computer resource to cheat. An incarceration sentence of up to three years in prison and a fine could be imposed for this kind of offense.


  • Sections 43(J) and 66D of the Information Technology (Amendment) Act, 2008, as well as Sections 419 and 420 of the Indian Penal Code, 1860, and Section 66 were the charges brought against the appellants, Ekene Godwin, and another person. These sections deal with transgressions involving computers, impersonation, and cheating.
  • On various dates trial court only recorded the chief examination of the twelve prosecution witnesses. As the defendant’s representative was not present, no cross-examination was conducted of the said witnesses.
  • The High Court had directed the Trial Court to complete the trial preferably within a period of four months, imposing a time-bound schedule for case disposal.
  • The appellants filed an appeal with the Supreme Court in search of redress because they were dissatisfied with the High Court's rejection of regular bail and the procedure.


  • What justification did the High Court give for dismissing the appellants' request for regular bail?
  • Why did the Supreme Court order the Trial Court to assign a legal aid advocate to represent the appellants in court and to provide them with legal aid?
  • What effects did the Trial Court's decision to record the prosecution witnesses' main questioning without allowing them to be cross-examined have on the proceedings?
  • What circumstances prompted the Supreme Court to order a de novo trial, in which the prosecution's previously examined witnesses are re-examined?
  • What impact did the claimed charges against the appellants have on the decision to grant bail with strict restrictions attached, like giving up their passports?


  • The counsel representing the appellants requested the Supreme Court to issue a direction to the Trial Court to provide legal aid to the appellants.
  • The High Court had denied the appellants' request for regular bail. Considering the nature of the charges against them and the fact that they had been detained since a particular date, the appellants argued for their release on bond pending the outcome of the trial.
  • The appellants expressed displeasure with the trial's procedural anomalies, especially in relation to the recording of the prosecution witnesses' chief examination without their cross-examination. They claimed that this process went against the law and might harm their case. 
  • The appellants expressed concerns about the way the trial proceedings had been handled and stressed the significance of a fair trial. They contended that not having legal counsel present when the evidence was being recorded might affect their capacity to provide a strong defense.


  • The respondent contested the appellants' regular bail request, which the High Court had denied. Given the gravity of the charges against the appellants, the respondent made arguments against granting them bail. 
  • The respondent made an argument in support of maintaining the legal processes that were followed during the trial, such as recording the prosecution witnesses' main cross-examination. They argued in favour of the Trial Court's decisions and its observance of the High Court's strict timeline.
  • The respondent made arguments in favour of the prosecution's case against the appellants, highlighting the offenses that fell under Sections 66 of the Information Technology (Amendment) Act, 2008, and 419 and 420 of the Indian Penal Code, 1860. 
  •  The respondent made an argument supporting the continuation of the trial processes without providing bail to the appellants on the grounds of justice and public safety. 


  • The Supreme Court held that the appellant's right to a fair trial was violated, as the court examined the Trial Court's practice of recording evidence without the accused's attorney present. It highlighted how crucial having legal counsel during trial processes is and listed the inconsistencies in the process.
  • The legal norms and guidelines regulating criminal procedures were taken into consideration by the court while assessing the Trial Court's conduct. It emphasized the value of following the law, maintaining the rights of the accused in line with the law, and ensuring procedural justice.
  • The court looked at the High Court's order to finish the trial in a certain amount of time and evaluated how it will affect once the trial is conducted. While acknowledging the pressure brought on by the time-bound schedule, it stressed that these limitations shouldn't be allowed to jeopardize the accused's rights or the integrity of the legal process.
  • The court considered the facts of the case, the nature of the charges, and the appellants' prison position as it deliberates over the remedy requested by the appellants, which includes bail and a de novo trial. It made sure that the right kind of relief is provided while striking a balance between the needs of correcting procedural flaws and the purposes of justice.
  • The court issued a directive for the appointment of a legal aid advocate to represent the appellants, emphasizing the importance of legal representation in safeguarding their interests and ensuring a fair trial.


The appellants in the case before the Indian Supreme Court, Ekene Godwin and another person, were charged with several crimes under the Information Technology Act and the Indian Penal Code. Without the accused's attorney present and without recording the prosecution witnesses' cross-examination, the Trial Court recorded the prosecution witnesses' main questioning during the trial. The appellants contended that this infringed upon their right to a fair trial and filed an appeal with the Supreme Court. To provide relief, the Supreme Court ordered the appellants to be released on conditional bail and ordered a de novo trial in which a legal aid advocate would be assigned to defend the appellants. The goals of this ruling were to correct procedural flaws, protect the rights of the accused, and guarantee impartiality throughout the legal proceedings. 

Reviewed by Adv. Nishtha Wadhwa, Content Writer and Reviewer, LCI

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