IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA th ON THE 26 OF NOVEMBER, 2024 MISC. CRIMINAL CASE No. 38541 of 2024 SMT RAGINI YADAV Versus RAKESH KASHYAP AND OTHERS Appearance:

Shri Ashok Kumar Ahirwar, Smt. Manju Lata Uchchakotiya and Shri Ratan Nigam - Advocate for the applicant.

Shri Prashant Sharma and Shri Shubhendu Singh Chauhan- Advocate for the respondents.

ORDER This application under Section 482 of Cr.P.C. has been filed against order dated th

13/08/2024 passed by 19 ASJ, Gwalior in Criminal Revision No.216/2024 as well as order dated 13/07/2024 passed by JMFC, Gwalior in RCT No.844/2016.

2. It is submitted by counsel for applicant that on complaint filed by applicant, respondents are facing criminal trial for offence under Sections 498-A and 34 of IPC and under Section 3/4 of Dowry Prohibition Act. On 12/02/2024, some of accused persons were not present and an application under Section 317 of Cr.P.C. was allowed without there being any undertaking to the effect whatever will transpire in their absence will be binding on them, the examination-in-chief of applicant was partially recorded. Since, she wanted to rely on certain documents, therefore, time was granted to file an application. On the very same day, an application under Section 319 and Section 91 of Cr.P.C. were filed and counsel for respondents prayed for time to file reply to said applications. Accordingly, Trial Court fixed case for 26/02/2024 for reply Signature Not Verified Signed by: PRINCEE of applications filed by applicant under Section 319 and Section 91 of Cr.P.C. It is submitted that although those applications were rejected subsequently, but thereafter warrant of arrest was never executed on applicant. It is further submitted that it is clear from all order-sheets that all accused persons were never present in Court and every time application under Section 317 of Cr.P.C. was filed which were being allowed without any undertaking by absentees that they will be bound by evidence which will be recorded in their absence. It is submitted that since, procedure which has been adopted by Trial Court is hit by provisions of Section 273 of Cr.P.C., therefore, it cannot be said that applicant was at fault. It is submitted that applicant is also interested in early disposal of criminal case. Thus, closer of her right to lead evidence is bad in law. Accordingly, it is prayed that order dated 13/07/2024 by which right of applicant to lead evidence has been closed, be set aside.

3. Per contra, it is submitted by counsel for respondents that applicant is adopting all sorts of method for delay. Even warrants of arrest were issued but she did not appear and accordingly, Court was left with no other option but to close right of applicant to lead evidence.

4. Heard the learned counsel for the parties.

5. Section 273 of Cr.P.C. which 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.]"

6. Admittedly, all accused persons were never present before Trial Court. They Signature Not Verified Signed by: PRINCEE never gave any undertaking that whatever evidence is recorded in their absence but in presence of their counsel would be binding on them.

7. The Supreme Court in the case of Atma Ram and Others Vs. State of Rajasthan reported in (2019) 20 SCC 481 has held as under:-

"17. Section 273 opens with the expression “Except as otherwise expressly prov