P.K.Jain - (1.) HEARD learned counsel for the revisionists and the learned A. G. A. With the consent of the parties, this revision is being finally disposed of at the admission stage.
(2.) THE revisionists alongwith one Umesh are being tried in S.T. No. 79 of 1997 under Section 307. I.P.C. before the IXth Additional Sessions Judge. Aligarh on 1.8.1997. Two witnesses whose examination-in-chief had already been recorded on 11.6.1997 were present. Accused Umesh was absent. Counsel for the revisionists was present but he refused to cross-examine the witnesses. THE trial court closed further opportunity for cross-examination by the impugned order. Having heard the learned counsel for the parties, I feel that the impugned order cannot be sustained. Once an accused was absent and process under Sections 82 and 83, Cr. P.C., was being issued against him, the trial could not have proceeded unless the case of accused Umesh was separated. The learned Sessions Judge did not do so and simultaneously asked the counsel for the revisionists to cross-examine the witnesses. It is well-settled that the evidence of the witnesses cannot be recorded in the absence of the accused unless attendance of the accused is exempted through counsel and the counsel agrees to cross-examine on behalf of such accused. In the instant case, Umesh accused was not appearing on the dates fixed as is evident from Annexure 1 copy of the order-sheet filed by the revisionists. At least on the instant date, that is, on 1.8.1997, the trial court did not exempt personal attendance of accused Umesh and directed issuance of non-bailable warrant of arrest and process under Section 82/83, Cr. P.C. In these circumstances, the evidence of witnesses could not have been recorded. The revision is allowed and the impugned order is set aside with a direction that the trial court shall give an opportunity to the revisionists to cross-examine the prosecution witnesses and in case other accused Umesh does not appear on the said date fixed for cross-examination of the witnesses, the trial court may take steps for separating his case so that trial of accused Tarun Gautam may proceed. Tarun is in jail and it is expected that the trial shall be concluded expeditiously. The trial court shall fix some date in the month of September, 1997 for cross-examination of the witnesses already examined by the prosecution and the counsel undertakes to cross-examine these witnesses on the date fixed by the court in the month of September.
(3.) THE revisionist shall produce a certified copy of this order before the trial court on 14th August, 1997.;