Judgment :- 1. The Special Court for trial of offences under the Essential Commodities Act, Trichur convicted the appellant for the offence under S.7(1) of the said Act read with Clause.29(1) and 50 of the Kerala Rationing Order, 1966 (for short 'the Order') and sentenced her to undergo simple imprisonment for a period of three months and to pay a fine Rs.1,000/-. This appeal is in challenge of the said conviction and sentence. Appellant was an Authorised Retail Distributor of rationed articles. 2. Appellant was the third accused in the trial court. The other two were acquitted. In the charge sheet filed by the police, the other two accused alone were arranged as accused, and the appellant's name was not even mentioned in the final report. Appellant was impleaded during the course of trial. The allegations against the other two accused were that rationed articles supplied by Government to the 1st accused were removed from the ration shop by him on 31-8-1984 in concert with the other for the purpose of selling them in black market. Those rationed articles were transported in a lambretta van which was noticed by PW.1 who stopped the vehicle en route. Information of it was transmitted to the police and a head constable from the local police station reached the spot and took the rice and the vehicle into custody. On the basis of the report submitted by the head constable, an F.I.R. was prepared and a crime case was registered. After completing investigation, the charge sheet was. laid indicting accused 1 and 2 for the offence under S.7(1) of the Essential Commodities 'Act read with Clause.5(A) of the order. 3. The trial proceeded against accused 1 and 2 until the completion of the examination of PWs.1 to 6. At that stage, Public Prosecutor filed a petition for impleading this appellant as the third accused. The trial court allowed the petition by order dated 23-9-1985. As the appellant pleaded not guilty the trial court recalled PW.1 to 6. Instead of examining witnesses afresh the trial court read out their evidence to the appellant and allowed her counsel to cross-examine them. Subsequently, four more witnesses were examined by the prosecution and the appellant's counsel cross-examined those witnesses. One defence witness was also examined. The trial court acquitted accused 1 and 2, but convicted the appellant and sentenced her as aforesaid. 4. Subsequently, four more witnesses were examined by the prosecution and the appellant's counsel cross-examined those witnesses. One defence witness was also examined. The trial court acquitted accused 1 and 2, but convicted the appellant and sentenced her as aforesaid. 4. The procedure adopted by the trial court is not sanctioned by law. S.319 of the Code of Criminal Procedure (for short 'the Code') empowers the court to proceed against other persons who were not originally arraigned as accused. If it appears from evidence during any enquiry or trial that any other person has committed any offence for which he could be tried together with the accused who are already on the array, such person could be proceeded against and tried together with other accused. Sub-section (4) to S.319 is important and hence it is extracted below: "Where the Court proceeds against any person under sub-section (1), then... (a) the proceedings in respect of such person-shall be commenced afresh, and the witnesses-reheard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial commenced ". A reading of sub-section (4) would show that it is mandatory that when a. new person is added as accused, proceedings in respect of him shall be commenced afresh. There is no escape from it as the word "shall" is used in the context. The court, cannot use the evidence already taken against the newly added accused. It is basic principle in criminal law that all evidence shall be taken in the presence of the accused except in specially provided cases. It is one of the vital principles of criminal justice and it is universally acknowledged that in a criminal trial, court should not proceed ex parte against an accused person except in limited cases specially mentioned in law. To remote any doubt regarding the said proposition the code contains S.273 which reads thus: "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." Exceptions to the said rule can be found in S.205, 291, 292, 293, 299 and 317 of the Code. But those exceptions are in special circumstances envisaged in the sections. Evidence recorded in a trial cannot be used against a person who was not an accused when such evidence was recorded. By reading the evidence already recorded, the defect is not cured. 5. S.351 of the old Criminal Procedure Code was the corresponding provision for S.319 of the Code. Robinson, C.J. for the Full Bench in Nage Chan Tha v. Emperor (AIR 1923 Rang. 31) has observed that the evidence must be recorded de novo when a new accused is added. Similar observation has been made by H. R. Khanna, J. (as he then was) in State v. Lakh Rai (AIR 1965 Punj.35). No other short cut is permissible under law. Public Prosecutor could not find out any precedent or authority to support the course adopted by the lower court. I, therefore, allow this appeal and set aside the conviction and sentence passed against the appellant. I direct the lower court to conduct a de novo trial with the appellant alone as accused in the party array. No appeal has been filed against acquittal of the other two accused and hence trial as against them cannot be re-opened.