Perused the letter No. 56 dated 1.3.2013 and 131 dated 14.03.2013 received from Adhoc Additional Sessions Judge-I, Banka and Chief Judicial Magistrate, Banka respectively in the light of the orders dated 29.01.2013 and 21.02.2013.

2. It appears, Shambhuganj P.S. Case No. 36/08 dated 6.4.2008 for the offence under Sections 436/324, 302/34 and 307/34 was lodged against the present appellant, Dildar Bind and five others duly named in the First Information Report. Initially charge sheet was submitted against the present appellant alone, who was tried in Sessions Case No. 927 of 2008 and convicted under judgment dated 4.12.2010 on all the three counts. Having heard the convict on the point of sentence under order dated 8.12.2010 he was sentenced to undergo rigorous imprisonment for life with further direction to pay fine of Rs. 25,000/- in default to further undergo rigorous imprisonment for three years.

3. This appeal has been filed against the aforesaid judgment dated 4.12.2010 and order of sentence dated 8.12.2010. Before the filing of the appeal on 28.1.2011, Dildar Bind was arrested on 03.01.2011 and supplementary charge sheet was submitted against the said Dildar Bind on 04.02.2011. In the supplementary charge sheet, five absconders have also been sent up for trial. In the light of the supplementary charge sheet dated 4.2.2011 cognizance shall be deemed to have been taken not only against Dildar Bind, but also against five absconding accused. The case of Dildar Bind and five absconding accused was committed to the court of sessions under order dated 15.02.2011 vide Sessions Trail No. 157 of 2011 and is pending before the Adhoc Additional Sessions Judge-II, Banka vide Sessions Trial No. 157 of 2011.

4. Chapter XXIII of the Cr.P.C. provides for mode of taking and recording evidence during enquiry and trial. Section 273 Cr.P.C. mandates that all evidence taken in course of the trial or other proceeding shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his Advocate. Section 299 Cr.P.C. empowers the trial court to record evidence in absence of accused, provided it is proved that an accused person has absconded and there is no immediate prospect of his arrest. The deposition recorded in the absence of the absconder, after the arrest of the absconder be taken in evidence against the absconder in the trial provided the witness whose evidence has been recorded in the absence of the absconder is dead or incapable of giving evidence or his attendance cannot be secured without an amount of delay, expense or inconvenience, which under the circumstances of the case is unreasonable. The two conditions precedent for recording of the evidence in absence of the accused under Section 299 Cr.P.C. are :—

1. That an accused person has absconded and

2. That there is no immediate prospect of his arrest

Application of Section 299 Cr.P.C. to a particular enquiry or trial is required to be considered in the light of the right of an accused to cross-examine a witness. Section 137 of the Evidence Act provides for examination in chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of-course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has the right to be informed there about. If an exception is to be carved out the statute must say so expressly or the same must be capable of being inferred by necessary implication. Section 299 Cr.P.C. being an exception to the general rule provided in Section 273 Cr.P.C. that all evidence taken in course of the trial shall be taken in the presence of the accused with opportunity to the accused to cross-examine the witness, must receive strict interpretation and thus scrupulous compliance thereof is imperative i