G.S. Ahluwalia, J.

1. Shri D.R. Sharma, Counsel for the applicant.

Shri Prakhar Dhengula, Panel Lawyer for the respondent/State.

2. This petition under Section 482 of Cr.P.C. has been filed against the order dated 20-2-2015 passed by Special Judge (MPDVPK Act), Datia in special Case No. 22/2003, by which an application filed by the applicant under Section 311 of Cr.P.C. for recalling the witnesses, who were examined after 25-6-2008 has been rejected.

3. The necessary facts for the disposal of this petition are that the applicant along with other co-accused persons are facing trial. On 25-6-2008 the applicant did not appear before the trial Court and, therefore, arrest warrant was issued and recording of evidence started. Certain witnesses were examined during the period when he was absconding and, therefore, neither the applicant nor his counsel could examine those witnesses. After the applicant was arrested then he filed the application under Section 311 of Cr.P.C. for recalling the witnesses who were examined in his absence. The application was rejected by order dated 20-2-2015 on the ground that the applicant himself had absconded and by order dated 25-10-2008 the proceedings against the applicant were separated and, therefore, his application for recalling the witnesses for further cross-examination cannot be accepted.

4. It is submitted by the counsel for the applicant that although the applicant did not appear before the trial Court and arrest warrant was issued against him and proceedings were also separated from the trial, but no specific order under Section 299 of Cr.P.C. was passed by the trial Court and in absence of such order, it cannot be said that the applicant has waived his right to cross-examine the witnesses. Further, it is submitted by the counsel for the applicant that cross-examination of a witness is only an important to make available the accused to prove his innocence. If the applicant is not permitted to cross-examine the witnesses, who were examined during the period of his absence, then he would suffer irreparable loss, therefore, it is submitted that even otherwise, the principle of natural justice demands that the applicant must get fair chance to face the trial. Thus, the order passed by the trial Court on 20-2-2015 is liable to be set aside.

5. Per contra, the learned counsel for the State submits that as the applicant himself had absconded and since the proceeding were separated, therefore, the applicant himself by his conduct has waived his right to cross-examine the witnesses, who were examined at the trial during the period on his absence. Therefore, the application has rightly been rejected by the trial Court.

Heard the learned counsel for the parties.

6. Before adverting to the facts of the case, it would be appropriate to take note of the provision of Section 273 and 299 of Cr.P.C.

Section 273 of Cr.P.C. reads as under:

'273. Evidence to be taken in presence of accused-except as otherwise expressly provided, all evidence taken in the 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 pleader:

(Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused)

Explanation.- In this section, 'accused' includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.'?

7. From the plain reading of Section 273 of Cr.P.C., it is clear that all the evidence which are taken in the course of trial or other proceeding shall be taken either in presence of the accused or where his personal attendance is dispensed with, in the presence of his pleader. However, there are certain ex