IMPORTANT POINT
Examination of witness – While normal rule is that evidence in a criminal trial must be recorded in presence of accused evidence of witnesses can be recorded in presence of Counsel for accused even in situations where court grants exemption from personal appearance to accused even of a day.

ORDER

The petitioner is the accused in Crime No.231/2022 of Payyannur Police Station, Kannur registered alleging commission of offences under Sections 354-A(1), 354-B, 354(D)(1)(i), 511, 376 of the Indian Penal Code and Section 10 read with 9(f)(l)(p) and Section 12 read with 11 (iv) of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act). Following the investigation, a final report was filed. Charges were framed against the accused under Sections 354 A (1)(1), 354 D (9),(l),(i), 511 read with 376 of the Indian Penal Code and Section 9 read with (I), (f), (p), (m) Sections 10, 11 read with Section 12 of the POCSO Act on 09-08-2023. Following the framing of charges, a summons was issued to CW1 (the victim in the case), and the case was adjourned to 21-09-2023. On 21-09-2023, the petitioner / accused was present in court. However, CW1 was absent. Therefore, a summons was issued to CW2, and a bailable warrant was issued to CW1. The matter was adjourned to be listed on 16-10-2023. On 16-10-2023, the petitioner / accused appeared through counsel and filed Annexure-A4 application numbered as CMP No.466/2023 seeking to condone the absence of the accused on that date (on medical grounds) and praying that the case be adjourned to any date after three weeks. The Special Court proceeded to record the chief examination of CW1, who was examined as PW1. Annexure-A4 petition was allowed on costs of Rs.3,500/- and the matter was adjourned to 08-11-2023 for the cross-examination of PW1. CW2, who was also present on the summons, was bound over on account of lack of time. The petitioner has approached this court challenging the proceedings of the Fast Track Special Court, Thaliparamaba, in examining PW1 in the absence of the petitioner. According to the petitioner, PW1 could not have been examined in his absence going by the mandate of Section 273 of the Code of Criminal Procedure (Cr.P.C). This Crl. M.C has been filed under Section 482 Cr.P.C seeking a direction to the Fast Track Special Court, Thaliparamba, to examine PW1 “in the presence of the petitioner ignore/deleting the evidence already taken in the absence of the petitioner in S.C No.392/2022 pending before the Fast Track Special Court, Thaliparamba.”

2. Sri. S. Aravind, the learned counsel for the petitioner / accused, refers to the provisions of Section 273 Cr.P.C to contend that it is the mandate of Section 273 that the recording of evidence in a criminal trial shall be in the presence of the accused. It is submitted with reference to the provisions of Sections 299 and 317 of the Cr.P.C that it is only when the personal appearance of the accused is dispensed with in the circumstances contemplated by those provisions that the deposition of witnesses can be recorded in the absence of the accused. It is submitted that the language of Section 273 Cr.P.C admits of no other interpretation. The learned counsel placed considerable reliance on the judgment of the Supreme Court in Atma Ram and others v. State of Rajasthan; (2019) 20 SCC 481 in support of this proposition. The learned counsel has also referred to the judgments of this court in Bhanujan v Jayabhanu; 1993 (2) KLT 889, Alice George v. Deputy Commissioner of Police; 2003 (1) KLT 339, Raju T.P. v. State of Kerala; 2009 (3) KHC 14 and Arun Baby v. State of Kerala and another; 2021 (3) KLT OnLine 1014. The learned counsel has also referred to the judgment of the Supreme Court in Mydeen A.T and another v Assistant Commissioner, Customs Department; 2021 (5) KLT OnLine 1177.

3. Sri. Vipin Narayanan, the learned Senior Public Prosecutor on the other hand submits that there is absolutely no illegality in the procedure adopted by the learned Special Judge in permitting the examination in chief of PW1 in the absence of the petitioner / accused. The learned Public Prosecutor referred to the provisions of Section 309 Cr.P.C to contend that the provisions of that Section indicate that when witnesses are in attendance no adj