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HIGH COURT OF ALLAHABAD
S.K.Phaujdar
RAM ASHEESH
Versus
STATE OF U P
Decided On : 04 August 1998
Crl. Misc. Application No. 2934 of 1998
Section 273, Cr. PC - Presence of Accused - Provisions of Section 273, Cr. PC requiring all evidence to be taken in the presence of the accused or their pleader, except as otherwise expressly provided, and the court's directive to recall a witness for further examination and cross-examination.
Fact of the Case:
The accused and their senior Counsel were not present in court when a witness was examined, and the court took up the cross-examination itself. The court was reminded of the provisions of Section 273, Cr. PC, which requires the presence of the accused or their pleader during the trial.
Finding of the Court:
The court found that the evidence of the witness taken in the absence of the accused cannot be considered as evidence in the true sense and must not be treated as part of the record. The court directed the recall of the witness for further examination and cross-examination.
Issues: The issue revolved around the absence of the accused and their senior Counsel during the examination of a witness, and the subsequent refusal of the prayer for recall of the witness for further examination and cross-examination.
Ratio Decidendi: The court emphasized the requirement of the presence of the accused or their pleader during the trial as per the provisions of Section 273, Cr. PC, and held that evidence taken in their absence cannot be considered valid.
Final Decision: The court allowed the application with the directive to recall the witness for further examination and cross-examination.
Heard.
2. Perused the order of the learned 1st Addl. Sessions Judge, Mau. The order in question makes it clear that when a particular witness was examined on 10-7-98, the accused persons and their senior Counsel Sri Swami Nath Yadav were not present in court and the cross-examina tion was taken up by the court itself. It is unfortunate that a sessions judge is to be reminded of the provisions of Section 273, Cr. PC. which requires that all evidence taken in the course of trial shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader, except as otherwise expressly provided. The Cr. P. C. does not contemplate any ex pane proceeding against an accused except for recording statements against an absconder. When the court was ap proached on 24-7-98 for recall of the wit ness examined on 10-7- 98 for his examina tion and cross-examination afresh, the prayer was refused. What happened be tween the counsel and the court, could not affect the right of the accused and, as such, the evidence of the witness taken on 10-7-98 cannot be called an evidence in the true sense of the term and the same must not be treated as part of the record. The witness must be recalled for his further examina tion and cross-examination.
3. The present application stands al lowed with the above observation/direc tion.
Application allowed.
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