ORDER :

1. With the consent of the parties, the matter is heard finally.

2. The petitioner has filed the instant Cr.M.P. against the order dated 18.10.2022 passed by Additional Sessions Judge (FTSC), Surajpur in Sessions Trial No. 45/2020 (Crime No. 64/2020), whereby the application filed by the petitioner under Section 317 of Code of Criminal Procedure (for short “Cr.P.C.”) has been dismissed and arrest warrant has been issued against the applicant.

3. Shri Sinha, learned counsel for the petitioner would submit that the trial for the offences punishable under Sections 451, 354, 34 of IPC and Section 8 of the POCSO Act is going on against the petitioner and the petitioner is regularly appearing on every date of hearing. He further submits that before 18.10.2022, Shri A.K. Goyal, Advocate was regularly appearing on behalf of the petitioner, but on 18.10.2022 an application under Section 317 Cr.P.C. was moved by Shri S.P. Dubey, Adv. on behalf of the petitioner for exemption of petitioner before the Court on 18.10.2022 and he has also filed an application for adjournment as the original counsel Shri A.K. Goyal has gone to Raipur for his personal work therefore, he is unable to examine the witness. But the trial Court without considering the reasons assigned in the application properly, dismissed the application and ordered for issuance of arrest warrant. He further submits that in the application dated 18.10.2022, it is stated that petitioner is labour and had gone to some other place to earn his livelihood therefore, he could not appear on that day before the trial Court. Counsel also submits that for the fault of the counsel is not examining the witness the accused must not suffer. Therefore, the impugned order is liable to be set aside and arrest warrant be cancelled.

4. Shri Gurudev I. Sharan, learned State counsel would submit that as on the date of hearing the prosecutor was present, so the provisions contained in Section 309 of Cr.P.C. in which proviso has been inserted by amendment No. 5 of 2009 with effect from 01.11.2010 provides that even in such cases where the witness is present in the Court but a party or his pleader is not present, the Court can record the statement and the Court may at any circumstances dispensed with the examination in chief or cross-examination.

5. Heard learned counsel for the parties and perused the copy of the order-sheets of the trial Court attached with the petition.

6. Fourth proviso of Section 309 (2) of Cr.P.C. inserted by Act No. 5 of 2009 effective from 01.11.2011 is reproduced hereunder:

“Provided also that:

(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment.

(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.”

7. Taking into consideration the aforesaid provision it can be emphasized that the Court is able to record the statement of the witness on such date and after recording the chief examination may ask to the lawyer present for the accused for cross-examination. If he still unable to cross-examine for any specific reasons then such reasons may be considered by the trial Court. However, in the instant case, no such examination was done. Inspite of the fact that accused was regularly appearing before the trial Court and it is sorry state of affairs on the part of concerned counsel that when a witness of the prosecution i.e. Patwari Pitambar is present before the Court for examination he should have taken proper instruction from the original counsel for speedy disposal.

8. Con