ORDER

A.M. Badar, J.—Criminal Application No. 1144 of 2016 is filed by applicant / original accused No.4 Sandeep irla @ Saridya whereas Criminal Application No.1239 of 2017 is filed by the applicant / accused No.3 Kumar @ Kalya Chinnu Devendra seeking their release on bail. Appellant/accused No.1 Om @ Vinayak Gaikwad, it seems, has not preferred any bail application.

2. Today all these appeals along with bail applications are listed for hearing before this court.

3. Mr. Nandkumar Sawant, the learned advocate appearing for the applicant / accused Sandeep @ Sandya and Mrs. Farhana Shah, the Iearned advocate appearing for the applicant / accused Kumar @ Kalya Chinnu Devendra argued that the learned Sessions Judge, Mumbai, has breached principles of natural justice while deciding the Sessions Case No.679 of 2012 and convicted appellants / accused Nos.1, 3 and 4 of serious offences punishable under Section 376(2)(g) as well as Section 324 read with Section 34 of the IPC. They are sentenced to suffer heavy punishment i.e. rigorous imprisonment for 10 years and 1 year respectively on these two counts apart from imposition of fine, without following the due process of law and therefore they are entitled for bail.

4. The learned advocate appearing for appellant / accused no.4 Sandeep Irla @ Sandyaand appellant / accused no.3 Kumar @ Kalya submitted that no opportunity of cross-examination of PW1 - victim of the crime in question was granted to accused no.2 Yogesh Kanojia and appellant / accused no.3 Kumar @ Kalya. The learned Sessions Judge, Mumbai, has observed that learned advocate for accused no.2 is absent and accused no.2 is unable to conduct cross-examination in person, With this observation, order of no cross-examination by accused no.2 Yogesh is passed. So far as applicant / accused no.3 Kumar @ Kalya is concerned, it is recorded by the learned Sessions Judge that his advocate is absent and he (accused no.3) refused to cross-examine PW1 - victim personally. With this, no cross order came to be passed. Both the learned advocates further submitted that similar is the case in respect of evidence of PW2 Dr. Baban Shinde. By marking absence of the learned advocate for accused no.2, it was observed that accused no.2 declined to ask any questions to PW2 Dr. Baban Shinde. With this observation, no cross order came to be passed. Both learned advocates for applicants / accused submitted that this procedure is unheard in criminal jurisprudence and the criminal trial cannot proceed exparte against accused persons.

5. The learned advocates appearing for applicants / accused further submitted that similar mode of proceeding against the accused was adopted by the learned Sessions Judge, Mumbai, in respect of PW5 Prajakta Kothekar. By marking absence of learned advocate for applicant / accused no.4 Sandeep and observing that the applicant / accused no.4 Sandeep has declined to cross-examine PW5 Prajakta Kothekar through video conferencing, the learned Sessions Judge, Mumbai, had closed evidence of PW5 Prajakta Kothekar.

6. It is further argued by learned advocates appearing for applicants / accused that after chief examination of PW6 Tukaram Jadhav, it is observed by the learned Sessions Judge, Mumbai, that advocate for applicant / accused no 4 Sandeep is absent, with further observation that he (accused no.4 Sandeep) refused to cross-examine PW6 Tukaram Jadhav through video conferencing, the learned Sessions Judge, Mumbai, discharged PW6 Tukaram Jadhav.

7. In submission of learned advocates appearing for applicant / accused, criminal trial cannot proceed exparte against accused persons and evidence of prosecution witnesses cannot be closed merely because rustic and illiterate accused is not in a position to cross-examine prosecution witnesses in person. Both learned advocates submitted that in the eventuality of absence of• accused persons for cross-examination while trying serious offences, the Sessions Judge is duty bound to grant short adj