The accused should be present during the recording of evidence and should cross-examine the witnesses on the day they are examined-in-chief. The Trial Court should not permit dilatory tactics by the accused.

1. The facts leading to the filing of the present Criminal Original Petition are that one Satish Babu was murdered on 19.09.2010, in connection with which, the respondent police registered a case in Crime No.712 of 2010 and after completing the investigation, filed a final report against 8 accused and the case is now pending trial in S.C. No.320 of 2012 before the III Additional District and Sessions Court, Thiruvallur at Poonamallee. Trial commenced after framing of charges. On 13.08.2014, the prosecution examined Raj @ Vimal Raj-P.W.1, Sridhar-P.W.2, Karthik-P.W.3, Surender-P.W.4 and Udaya Raj @ Udaya-P.W.5 and their cross was deferred on application. On 24.11.2014, the accused have filed the present petition, i.e., Crl.O.P. No.31505 of 2014 for transferring S.C. No.320 of 2012 from the file of the III Additional District and Sessions Court, Thiruvallur at Poonamallee to any other Sessions Court, making allegations against the judicial officer concerned.

2. In the affidavit of Babu (A6) filed in support of the application for transfer, he has stated that the accused had engaged one Jayaraj, a junior lawyer, who did not properly defend their case. He has further stated that he (A6) himself and Ganesh (A4) were detained under the Tamil Nadu Act 14 of 1982 as Goondas and were confined in Central Prison, Puzhal as detenus on 13.08.2014. Jayakumar (A7) was also confined in Central Prizon, Puzhal as he was convicted and sentenced for an offence under Section 307 IPC and was a convict prisoner. It is alleged in the affidavit that P.Ws. 1 to 4 were examined on 13.08.2014 in the absence of Ganesh (A4), Babu (A6) and Jayakumar (A7), as they were taken out of Puzhal Prison only at 11 a.m. in escort van and were produced only at 12.30 p.m., by which time, the witnesses were examined-in-chief behind their back. Hence, the accused have prayed for transfer of case from the file of the III Additional District and Sessions Court, Thiruvallur at Poonamallee and for effacing the evidence of P.Ws.1 to 4 in toto.

3. Mr. R. Sankarasubbu, learned counsel for the accused strenuously contended that the entire trial is vitiated as it is a rudimentary principle of law that evidence should be recorded in the presence of the accused and not otherwise.

4. Per contra, the learned Additional Public Prosecutor appearing for the respondent State submitted that the accused were released on bail in this case and they were absconding one after the other and were not permitting the Trial Court to proceed further and ultimately, on 13.08.2014, P.Ws. 1 to 5 were examined-in-chief in the presence of the accused and the counsel for the accused even filed a petition to defer the cross which has been allowed by the Trial Court.

5. Heard Mr. R. Sankarasubbu, learned counsel for the petitioners, Mr. S.Ramajayam, learned counsel for the intervener and Mr. C. Emalias, learned Additional Public Prosecutor appearing for the respondent State.

6. From the report dated 17.12.2014 called for by this Court from the III Additional District and Sessions Court, Thiruvallur at Poonamallee and the copies of documents received, it is manifest that that an advocate by name Jayaraj had entered appearance for all the accused by filing a memo of appearance on 13.12.2012, which has been taken on file as early as 2012. From 2012 to 2014, it was Jayaraj, M.A., B.L., Advocate and C. Rajasekar, Advocate, who were defending the accused. On 13.08.2014, when P.Ws.1 to 5 were present, Section 317, Cr.P.C. application appears to have been filed for A4 by the counsel. The report dated 17.12.2014 sent by the Trial Judge reads as under:

“On 13.08.2014, A1, A2, A3, A5 and A8 were present. A4 absent. 317 Cr.P.C. petition filed by the counsel for accused Mr. D.Jayaraj. A6, A7 produced on P.T. Warrant. L.W. 1 to L.W.5 present and examined as P.W.1 to P.W.5, Ex.P.1 and M.O.1 to 3 were marked. Petition u/s 231(2) filed by the counsel for the accused Mr. D. Jayaraj and the same was allowed and the case was