BHUPENDRA SINGH Vs. STATE

JUDGEMENT

(1.) The applicant-petitioner is being prosecuted along with some others in case No. 61/93 for the offence under section 302/34 Penal Code in the court of the learned Additional Sessions Judge No. 3, Kota. The petitioner is in judicial custody and has been lodged in District Jail, Kota. Warrants were issued by the learned trial court to the Superintendent of District Jail, Kota for the production of the petitioner on 24.1.1994 which was the date for recording the evidence of the prosecution. On 24.1.1994 the Superintendent of Jail concerned did not produce the petitioner from Jail and the counsel representing the accused-petitioner pleaded no instructions. The learned trial court, however, observed that the matter was being delayed and, as such, directed that the statements of the witnesses present should be recorded with the further observation that the learned counsel for the accused- petitioner would cross examine the said witnesses. The examination-in-chief of Ramhet was recorded on 24.1.1994 and the case was adjourned to 25.1.1994 on which date also the accused-petitioner had not been produced in court and examination-in-chief of other witness Ghasilal was recorded. The opportunity to cross examine these witnesses was given to the counsel, who had earlier been representing the accused-petitioner and who pleaded no instructions to proceed with the case. Feeling aggrieved, the petitioner has approached this court by filing this petition under section 482 Crimial P.C.

(2.) I have heard the learned counsel for the parties and have also perused the impugned order.

(3.) The leaned PP has very fairly conceded that the learned trial court has no power to proceed with the case without procuring the attendance of the accused-petitioner, who is in judicial custody and specially when the learned counsel representing him had pleaded no instructions to proceed with the case in absence of the accused-petitioner.