JUDGMENT This criminal revision is directed against the order dated 25th April, 2012 passed by learned Sessions Judge, Ramban in case titled State versus Sonaullah Naik and others, bearing FIR No. 65/1998 of Police Station Ramban, whereby the application filed by the petitioner-accused for joint trial has been rejected, hereinafter for short as impugned order. SUMMARY OF THE CASE 2. Police Station Ramban conducted investigation in case FIR No. 65/1998 and after completion of said investiga­tion, Challan in terms of Section 173 of the Code of Criminal Procedure, for short as Code, was presented against accused No. 1 to 7. At the time when challan was presented and thereafter when case was committed to Sessions Court, Ramban, only accused No. 3 to 7 were present and against accused No. 1 and 2, because of having been re­ported absconding, proceedings under section 512 of the Code were drawn. 3. Trial Court viz. Sessions Court, Ramban framed charge against the accused 3 to 7 who pleaded not guilty and claimed to be tried. 4. During the pendency of the trial, petitioner-accused No. 1 appeared be­fore the trial court on 15th December, 2011, was charge-sheeted vide order dated 3rd March, 2012 and prosecution was directed to lead evidence. 5. The petitioner-accused moved an application with the averments that the evidence already on record be read against him and he is giving up the right of cross-examination. Therefore, his trial be conducted along with ac­cused No. 3 to 7. 6. Trial court, after consideration, dismissed the application vide im­pugned order and directed that sepa­rate trial be conducted against the ac­cused No. 1 on the ground that all wit­nesses have to be called afresh during the trial of accused No. 1, petitioner. 7. Feeling aggrieved the petitioner questions the impugned order by the medium of present petition; which states that impugned order is illegal and trial court cannot put petitioner to separate trial; that petitioner has given up his right to cross-examination and submits that the evidence already re­corded be read against him. Petitioner has prayed that impugned order, being bad, be set-aside and trial court be di­rected to conduct trial of petitioner-ac­cused No. 1 along with accused 3 to 7 without calling the witnesses, already examined by the prosecution, for cross examination. 8. Petitioner has prayed that impugned order, being bad, be set-aside and trial court be di­rected to conduct trial of petitioner-ac­cused No. 1 along with accused 3 to 7 without calling the witnesses, already examined by the prosecution, for cross examination. 8. I have gone through the impugned order and perusal whereof makes a room for consideration, a question, as to whether the trial court was within its powers to direct for separate trial and ask the prosecution to examine all the witnesses afresh so far it relates to petitioner, accused No. 1? 9. To have the question answered, the principles and concept of the Sec­tion 512 Cr. P.C. in the first instance need to be emphasized, therefore, Sec­tion 512 Cr. P.C. may be reproduced thus:- "512. Record of evidence in ab­sence of accused—. (1) If it is proved that an accused per­son has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or com­mit for trial such person for the of­fence complained of may, is his ab­sence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the enquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without any amount of delay, expense or inconve­nience which, under the circumstances of the case, would be unrea­sonable. (2) Record of evidence when offender unknown,- If it appears that an of­fence punishable with death or im­prisonment for life has been commit­ted by some person or persons un­known, the High Court may direct that any (judicial Magistrate) of the first class shall hold an inquiry and ex­amine any witnesses who can give evidence concerning the offence. Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the lim­its of Jammu and Kashmir State.” 10. It appears that aim and object of Section 512 Cr. P.C. is to ensure that important evidence is not lost by the time accused remained absconding till his Arrest. In other words it is aimed at to preserve the evidence against the absconding accused. 11. It appears that aim and object of Section 512 Cr. P.C. is to ensure that important evidence is not lost by the time accused remained absconding till his Arrest. In other words it is aimed at to preserve the evidence against the absconding accused. 11. Admittedly the general rule is that all evidence in a criminal trial shall be recorded in presence of the accused or in presence of a lawyer rep­resenting accused during the period personal appearance of the accused is dispensed with. 12. Section 512 Cr. P.C., at the very same time, provides for exception too which aims to ensure that evidence is preserved, so that the absconding ac­cused cannot take advantage of his own wrong. Perhaps this special provi­sion is just aimed at to have a role of fair play, and it takes care of the ad­vantages and disadvantages of both the sides that they would be put to, i.e., the benefit or loss that either of the side would suffer when evidence is recorded in absence of the accused. However, when accused appears he has a right of cross-examining the witnesses if at that particular point of time, the listed witnesses are alive and their presence can be secured without much amount of delay. 13. Here in the instant case, the petitioner, accused, who was abscond­ing, surrendered; was charge-sheeted; pleaded not guilty and claimed to be tried. He thereafter made an applica­tion and adopted the statements of the witnesses recorded in his absence to be read against him. Thus, in my opin­ion, the purpose of the Section stands served. 14. How and why the trial court has asked for a separate trial, is not forth­coming notwithstanding the fact that accused Sonaullah Naik surrendered before it, chose not to cross-examine the witnesses already examined and consented for evidence to be read against him. 15. Section 353 of the Cr. P.C man­dates that all evidence in an enquiry or trial is to be taken in presence of accused but exception is Section 512 Cr.P.C. 16. The statements so far read, in the instant case, are complete because the accused has given up his right of cross-examination. It is profitable to reproduce Section 137 and 138 of the Evidence Act herein:- "137. Examination-in-chief The examination of a witness by the party who calls him shall be called his examination-in-chief. The statements so far read, in the instant case, are complete because the accused has given up his right of cross-examination. It is profitable to reproduce Section 137 and 138 of the Evidence Act herein:- "137. Examination-in-chief The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.- The exami­nation of a witness by the adverse party shall be called his cross-exami­nation. Re-examination.- The examina­tion of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-ex­amination. 138. Order of examinations Witnesses shall be first examined-in-chief, then (if the adverse party so desires) corss-examined, then (if the party calling him so desires) re-exam­ined. The examination and cross-exami­nation must relate to relevant facts but the cross-examination need not be confined to the facts to which the Wit­ness testified on his examination-in-chief. Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new mat­ter is, by permission of the Court, in­troduced in re-examination, the ad­verse party may further cross-exam­ine upon that matter.” 17. The said Section mandates how to examine and cross-examine the wit­nesses. It nowhere provides that when trial is going on; is yet to be concluded, the separate trial can be ordered on the ground that the accused who was ab­sconding has surrendered and putting him together with those who are fac­ing trial will cause delay, disregarding the fact that accused who has surren­dered has made a statement that whatever evidence has been recorded in his absence be read against him and he does not want to cross-examine the recorded witnesses afresh. It is a novel procedure adopted by the trial court. 18. It would be apt to reproduce Sec­tion 33 of Evidence Act herein:- "33. It is a novel procedure adopted by the trial court. 18. It would be apt to reproduce Sec­tion 33 of Evidence Act herein:- "33. Relevancy of certain evidence for proving in subsequent pro­ceeding, the truth of facts therein stated Evidence given by a witness in a judicial proceeding, or before any per­sons authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judi­cial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is inca­pable of giving evidence or is kept out of the way by the adverse party, or if his presence cannot be obtained with­out an amount of delay or expense which, under the circumstances of the case, the Court considers unreason­able: Provided that the proceeding was between the same parties or their representatives in interest; That the adverse party in the first proceeding had the right and opportunity to cross-examine; That the questions in issue were substantially the same in the first as in the second proceed­ing." 19. This provision of law mandates how the statement of witness in one judicial proceeding can be admissible in subsequent judicial proceeding. 20. Chapter XXIII of Cr.P.C. provides how to conduct trial before a court of Sessions. Sections 266 to 277 of Cr.P.C. provides when trial is to start and when concluded. It has to conclude with ac­quittal or sentence in terms of Sections 266 to 277 of Cr.P.C. 21. Section 137 of Evidence Act man­dates how to conduct examination in chief, then cross-examination by de­fence and re-examination. Section 138 also provides under what circum­stances the court can direct for re-ex­amination. Thus the statement of wit­nesses becomes admissible only after conducting cross-examination by the defence or if there is any requirement of re-examination. The right of cross-examination to opposite party is dis­tinctive and independent right and if accused declines to cross-examine the witness the said evidence is admis­sible evidence and such statement is complete in terms of mandate of Sec­tion 137 and 138 of Evidence Act. 22. The right of cross-examination to opposite party is dis­tinctive and independent right and if accused declines to cross-examine the witness the said evidence is admis­sible evidence and such statement is complete in terms of mandate of Sec­tion 137 and 138 of Evidence Act. 22. The Apex Court in a case titled as Nirmal Singh versus State of Haryana reported as 2004 SCC 41 held that even if an irregularity is commit­ted while passing order in terms of Sec­tion 299 which corresponds to Section 512 of Cr.P.C, that is curable and moreso when accused had not raised any objection at any earlier stage of the proceeding. It is apt to reproduce para­graph 3 of the said judgment herein:- "3. Mr. Mahabir Singh, the learned counsel, appearing for the State-re­spondent, on the other hand con­tended that the five persons having been reported to be dead, their state­ments recorded under Section 299 Cr. P.C. were tendered in evidence, which had been exhibited as Exhibits PW48/A to PW48/E. At no point of time, the accused has made any griev­ance that these persons are not dead. It is too late for the appellant to con­tend in this Court that there is no material to establish that the persons whose statements were recorded un­der Section 299 Cr. P.C. and those statements were tendered in evidence during trial, are not dead. According to Mr. Mahabir Singh, the appellant in this Court also does not contend that the persons concerned are not dead. But what is contended is that the prosecution has not established the fact that the people are not dead. The Magistrate who has recorded the statement under Section 299 of the Criminal Procedure Code, has been examined to indicate that in fact he has recorded the statements. He also further contended that the process server did submit the report that the persons are dead, whereafter the statements recorded under Section 299 Cr. P.C. were tendered in evi­dence in course of trial. It is true that the learned Sessions Judge has not passed any order to that effect but non-passing of such order would at the most be an irregularity which is curable under Section 465 of the Code of Criminal Procedure, moreso, when the accused had not raised any ob­jection at any earlier stage of the pro­ceeding. " 23. It is true that the learned Sessions Judge has not passed any order to that effect but non-passing of such order would at the most be an irregularity which is curable under Section 465 of the Code of Criminal Procedure, moreso, when the accused had not raised any ob­jection at any earlier stage of the pro­ceeding. " 23. This court has also dealt the said question in case titled State ver­sus Naresh Kumar reported as 2008 (1) SLJ, 196. It is apt to reproduce para­graph 10 of the said judgment herein :- "10. It is necessary for the prosecution to re-examine the wit­nesses, whose evidence has been pre-served, during trial of absconded ac­cused in a case where the witnesses are not dead or have not become in­capable of giving evidence or their evidence can be procured without an amount of delay, expense or inconve­nience or it would suffice if the ac­cused is given the liberty of cross-ex­amining them? In my considered opin­ion re-examination would not be necessary and the evidence of such wit­nesses can be tendered against the accused and read against him after giving the accused an opportunity of cross-examination of such witnesses and with a further opportunity of re-examination to the prosecution, if re­quired. It would not be necessary for the prosecution to produce the wit­nesses before the trial court in the trial against such accused for the pur­poses of chief-examination. The only impediment for reading such evidence against such an accused being that the accused has not cross-examined the witnesses, the right of which he possesses under the provisions of Evidence Act can be validly taken care of by providing the opportunity of cross-examination of those witnesses again, whose evidence stands al­ready recorded and preserved. The only right which such an accused would have will be to seek recall of the witnesses for the purposes of cross-examination. In case the ac­cused seeks such recall, the court is bound to recall such witnesses only for the purposes of cross-examination and re-examination by the accused and the prosecution, even if the wit­nesses are not dead or have not be­come incapable of giving evidence or their attendance can be procured with­out an amount of delay, expense or inconvenience, which in the circum­stances of the case would not be un­reasonable. However, if by that time when the accused is being put on trial the presence of such witnesses can­not be procured, because they are dead or incapable of giving evidence or their attendance cannot be procured without an amount of delay, expense or inconvenience, which in the opin­ion of the Court would be unreason­able, then the evidence recorded and preserved in terms of Section 512 Cr.P.C., is t& be tendered and read against the accused despite the fact that the same has been recorded in the absence of accused....." 24. The insistence of the trial court for separate trial amounts, virtually, to second trial. Apex Court in case, titled Jayendra Vishnu Thakur versus State of Maharashtra and anr. reported as 2009 (7) SCC 104 discussed the man­date of Section 299 IPC corresponding to Section 512 Cr.P.C. The court also discussed the provisions of Section 82 IPC corresponding to Section 87 R.P.C of J&K State. The court in the said judg­ment narrated the concept of principles of natural justice, right to cross-exam­ine the witness; its legal sanctity. 25. The Apex Court also has taken a view in the case supra that this judg­ment, on the subject, shall hold good over all judgments made by the Su­preme Court and High Courts right from 1915 till it was announced. The thrust in the judgment is what is the right of the accused and it is held to be a statutory right of the accused to con­duct cross-examination and statement of witnesses is incomplete unless it is cross-examined by the adverse party. But Section 299 IPC corresponding to Section 512 Cr.P.C. read with Section 33 of Evidence Act is an exception. 26. As discussed hereinbefore, the accused has not sought for calling wit­nesses afresh or even for cross-exami­nation, therefore, in such circum­stances, how the trial court has ordered for separate trial is not forthcoming. The same question arose for consideration before Apex Court in case titled Central Bureau of Investigation versus Mustafa Ahmad Dossa, reported as SCC 2011 (4) 418. In the said case the trial court had ordered for a separate trial; accused had prayed that they be put to trial along with other co-accused. The same question arose for consideration before Apex Court in case titled Central Bureau of Investigation versus Mustafa Ahmad Dossa, reported as SCC 2011 (4) 418. In the said case the trial court had ordered for a separate trial; accused had prayed that they be put to trial along with other co-accused. On behalf of State it was argued that the trial was concluded so far it related to other accused, therefore, question of conducting joint trial was not possible and that is why separate trial was or­dered and prayer made by petitioner had become infructuous. It is apt to reproduce paragraph 11 of the said judgment herein: - "11. The order dated 4.7.2003 was challenged by the respondent by way of SLP (Crl) No. 3806 of 2003. This special leave petition was dis­posed of on 21.11.2003 with the fol­lowing order: "1. Heard the learned counsel for the parties. 2. The Petitioner is challenging an order by which separate trial has been ordered as regards the petitioner. The petitioner prays that the trial should have been along with the other accused. The learned Additional Solicitor Gen­eral submitted that the cases of the other accused have already been over and judgment is re­served. In view of the above cir­cumstances, the prayer made by the petitioner has become infructuous. The petitioner prays that his trial may be initiated at the earliest and be completed ur­gently. The Special Judge shall conduct the trial expeditiously.” 27. In the instant case, the trial is yet to be concluded. The accused has not prayed for fresh examination of the witnesses or for cross-examination which course would in common sense also be acceptable for it serves the pur­pose of the law; will save the amount of time. 28. Learned counsel for State frankly conceded that order passed by the trial court is bad in law and argued that un­der law right of the accused is to con­duct cross-examination which he has waived by choice and there is no scope for asking for separate trial and for pro­duction of witnesses 7 afresh. 29. Learned counsel for informer Mr. O. P. Thakur firstly resisted the petition but later on did not argue. 30. The impugned order, if allowed to operate, would amount in delay. 31. Viewed thus, the impugned or­der, in the circumstances, is held to be bad, therefore, set-aside. 32. 29. Learned counsel for informer Mr. O. P. Thakur firstly resisted the petition but later on did not argue. 30. The impugned order, if allowed to operate, would amount in delay. 31. Viewed thus, the impugned or­der, in the circumstances, is held to be bad, therefore, set-aside. 32. The trial court is directed to con­duct the trial of all accused including petitioner and conclude the same as early as possible and report compliance. 33. Disposed of _________