IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SMT. JUSTICE SUNITA YADAV ON THE 7^th OF SEPTEMBER, 2022 MISC. CRIMINAL CASE No. 36720 of 2022 BETWEEN:-

VIRENDRA SAKHWAR S/O ASHARAM SAKHWAR, AGED ABOUT 32 YEARS, OCCUPATION: AT PRESENT IS IN JAIL GRAM BUDHRA THANA PORSA (MADHYA PRADESH)

.....PETITIONER (BY MR. VIJAY SUNDARAM - ADVOCATE)

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER P.S. PORSA (MADHYA PRADESH)

.....RESPONDENT (BY MR. R.K. AWASTHI - PUBLIC PROSECUTOR)

This application coming on for hearing this day, the court passed the following:

ORDER

The present petition under Section 482 of Cr.P.C. has been filed assailing the order dated 09.04.2022 passed by Second Additional Sessions Judge, Ambah District Morena in S.T.No. 258/2020, whereby an application filed by the petitioner under Section 311 read with Section 273 of Cr.P.C. for recalling of the witness has been dismissed.

The facts giving rise to this petition are that the petitioner is facing criminal trial for the offences punishable under Section 294, 323, 325 and 302 of IPC on the basis of report lodged by the complainant to the concerned police station. On 04.02.2021 and 05.02.2021, the case was fixed for prosecution evidence and prosecution produced its witness Sanju @ Bittibai (PW-1) and Vipul (PW-2) which were examined and cross-examined and have been discharged. At the time of recording of evidence, the petitioner/accused was not brought to the Court by the jail authority.

Learned counsel for the petitioner argued that in view of the provision under Section 270 of Cr.P.C., recording of prosecution witness Sanju @ Bittibai (PW-1) is contrary to the provision of settled principle of law as well as against the provisions prescribed under Section 273 of Cr.P.C. The petitioner was not produced even through video conferencing while recording of the evidence of Sanju @ Bittibai (PW-1) and in such a situation, previous counsel Shri Gangadhar Sharma could not obtain the relevant information as to the case from accused. In these circumstances, the above witness ought not to be examined. It is further argued that the rejection of the application of the petitioner by impugned order is perverse and against the settled principle of law, therefore, this petition be allowed and order passed by learned trial Court in ST No.258/2020 be set aside and the trial Court be directed to recall the witness Sanju @ Bittibai (PW-1) for cross-examination in the presence of petitioner.

On the other hand, learned counsel for the respondent - State opposed the prayer of the petitioner and argued that the application for re-examination of the witness has been filed only to get the witness turned hostile, therefore, petition be dismissed.

Heard the learned counsel for the parties and perused the record.

Perusal of record reveals that Sanju @ Bittibai (PW-1) has been examined by the trial Court on 04.02.2021. The perusal of order-sheets also reveal that on 04.02.2021 the petitioner was not produced before the trial Court in person by the jail authority. He was also not produced through Video Conferencing.

Provision of 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.

Section 273 of the Code opens with expression, “Except as otherwise expressly provided….…†and the only exceptions to the application of Section 273 are those expressly provided i.e. in Sections 299 and 317 of the Code. Subject to these exceptions, Section 273 Cr.P.C. is absolutely mandatory. Section 299 of Cr.P.C. is for recording of evidence where accused is absconding and Section 317 of Cr.P.C. provides that :

"at any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, t