RAM ASHEESH Vs. STATE OF U P

JUDGEMENT

(1.) S. K. Phaujdar, J. 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.