Ram Asheesh vs State of U.P.

S.K. Phaujdar, J.—Heard.

Perused the order of the learned Ist Additional Sessions Judge, Mau. The order in question makes it clear that when a particular witness was examined on 10.7.1998, the accused persons and their senior counsel Sri Swami Nath Yadav were not present in Court and the cross-examination was taken up by the Court itself. It is unfortunate that a Sessions Judge is to be reminded of the provisions of Section 273, Cr. P.C. which requires that all evidence taken in the course of trial shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader, except as otherwise expressly provided. The Cr. P.C. does not contemplate any ex parte proceeding against an accused except for recording statements against an absconder. When the Court was approached on 24.7.1998 for recall of the witness examined on 10.7.1998 for his examination and cross-examination afresh, the prayer was refused. What happened between the counsel and the Court, could not affect the right of the accused and, as such, the evidence of the witness taken on 10.7.1998 cannot be called an evidence in the true sense of the term and the same must not be treated as part of the record. The witness must be recalled for his further examination and cross-examination.

The present application stands allowed with the above observation/direction.