JUDGMENT 1. - The applicant-petitioner is being prosecuted along with some others in case No. 61/93 for the offence under section 302/34 IPC 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 Cr.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. 4. Shri N.C. Chaudhary, the, learned counsel for the complainant, has submitted that the accused-persons including the accused-petitioner has been trying to prolong the matter on one pretext or the other. He has relied on section 273 Cr.P.C., to contend that the statements of the witnesses could be recorded in absence of the accused-petitioner by exempting his personal attendance and directing his counsel to cross examine the witnesses concerned. 5. In my view, the argument addressed by Shri Chaudhary is totally miconceived. He has relied on section 273 Cr.P.C., to contend that the statements of the witnesses could be recorded in absence of the accused-petitioner by exempting his personal attendance and directing his counsel to cross examine the witnesses concerned. 5. In my view, the argument addressed by Shri Chaudhary is totally miconceived. The said section only empowers the court to exempt the personal attendance of the accused- petitioner and to proceed with the case on an application being made by the accused-person and for the reasons to be recorded in the order. This section does not empower the learned trial court to proceed with the case by exempting the personal attendance of the accused-petitioner who has not asked for any such exemption and directing the counsel who had pleaded no instructions to proceed with the case in absence of the accused-petitioner, who is in judicial custody and has not been produced by the authorities concerned in spite of the production warrants having been issued. 6. The procedure adopted by the learned trial court is not in accordance with law and can result into miscarriage of justice. Consequently, the proceedings taken in the form of statements in examination-in-chief of the two witnesses on 24.1.1994 and 25..1994 are quashed and the learned trial court is directed to proceed with the trial of the case in accordance with law. The petition is disposed of accordingly. *******