Hon'ble SHARMA, J.—This misc. petition has been filed under Section 482 Cr.P.C. by the petitioner Rajesh Saharan against the order dated 23.12.2011 passed by Additional Sessions Judge Fast Track No. 1 Jaipur Metropolitan Jaipur in Sessions Case No. 9 of 2008 whereby the application of the petitioner under Section 313 Cr.P.C. was rejected. 2. The accused petitioner Rajesh Saharan is facing a trial in criminal case arising out of FIR No. 78/1997 registered at Police Station Mahila, Jaipur for the offence under Secs. 366, 342, 376 (2)(g) and Sec. 120B IPC. During pendency of the investigation certain accused persons were arrested and charge sheet was submitted. The investigation against the present accused petitioner and certain other accused was kept pending under Sec. 173(8) Cr.P.C. It is stated in the petition that during the absence of the accused petitioner trial of other accused persons against whom charge sheet was submitted was started and on 27.11.1999 statement of prosecutrix Pragati Vyas was recorded. It is further stated that at that time the accused petitioner was not present as charge sheet was filed against him lateron. During the year 2005 charge sheet was filed against the petitioner and charges were framed against him on 19.8.2006. Since prosecutrix did not appear before the trial court for statement the evidence of the prosecutrix was closed which was subsequently challenged before this court and thereafter the stay application was also dismissed and the said order was challenged before the Apex Court and the Apex Court vide order dated 9.9.2011 allowed the application and gave an opportunity to get statements of the prosecutrix and other evidence to be led by prosecutrix before the court below. Thereafter statements of prosecutrix and other witnesses were recorded by the court below on 21.9.2011. The accused petitioner moved an application before the trial Court on 16.12.2011 that he was subjected to statements under Section 313 Cr.P.C. and in those statement things which have never been spoken by the prosecutrix in his presence are being put to the accused as statements which were recorded on 27.11.1999 which were recorded in his absence. After hearing arguments of both the sides the trial Court rejected the application of the accused petitioner vide order dated 23.12.2011. Thereafter the statement of the accused petitioner under Section 313 Cr.P.C. was recorded on 3.1.2012. Now this criminal misc. After hearing arguments of both the sides the trial Court rejected the application of the accused petitioner vide order dated 23.12.2011. Thereafter the statement of the accused petitioner under Section 313 Cr.P.C. was recorded on 3.1.2012. Now this criminal misc. petition has been filed challenging the order of the trial Court dated 23.12.2011 rejecting the application of the accused petitioner under Section 313 Cr.P.C. 3. Mr. Pradeep Chaudhary, learned counsel appearing for the petitioner has argued that the trial Court failed to consider this aspect of the matter that as per section 273 Cr.P.C. the evidence of the prosecutrix against the accused petitioner can only be led in his presence and it has to be recorded in his presence. It is further argued that on 27.11.1999 when the statement of prosecutrix was recorded the accused petitioner was no where in picture. Only incriminating articles which were legally proved against the accused can be put in statements under Section 313 Cr.P.C. In support of his contention reliance has been placed on Naval Kishore vs. State of Bihar (2004 Cr.L.J. 4252, M/s. Artee Minerals and others vs. State of Rajasthan VI 1988 (2) Crimes 322, Ramvilas and others vs. State of Madhya Pradesh 1985 Cr.L.J. 1773, Gurtej Singh and others vs. State of Punjab (2011 (1) Crimes 369 (P&H), Avtar Singh and others vs. State of Punjab (2002 Cr.L.J. 4330 = RLW 2003(1) SC 42, Ranvir Yadav vs. State of Bihar (2009 Cr.L.J. 2962) and Ram Shankar Rai vs. State of Bihar (1975 Cr.L.J. 1402). 4. Mr. R.P. Singh, Additional Advocate General appearing for the State opposed the arguments of the learned counsel for the petitioner. It has been argued that the trial court rightly rejected the application of the accused petitioner under Section 313 Cr.P.C. The statement of Pragati Vyas was recorded in the presence of the accused petitioner and the accused petitioner and his counsel were given the opportunity to cross examine the prosecutrix even on his earlier statement before the court recorded on 27.11.1999. If the counsel of the accused petitioner or the accused himself in whose presence the statement of the prosecutrix was recorded on various dates i.e. 27.9.2011, 30.9.2011, 1.10.2011 have not put any question or not cross examined the prosecutrix, they cannot be permitted to file an application that the statement of the prosecutrix recorded earlier in their absence in the court on 27.11.1999 should not be taken into consideration. It is further submitted that even the accused petitioner has himself given his written statement under Section 313 (5) Cr.P.C. Reliance has been placed on Central Bureau of Investigation vs. Abu Salem Ansari and another (2011) 4 SCC 426 and State of U.P. vs. Mohd. Iqram and another (2011) 8 SCC 80 . 5. I have heard the learned counsel for the parties and have also gone through the material placed on record and the cases cited by both the parties. 6. Chapter XXIII of the Code provides for evidence in inquiries and trails. Section 273 of the Code mandates that 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, which was specifically provided. 7. Section 299 of the Code expressly provides for the power of the court to record evidence in absence of the accused in the following term: "299. 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, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. (2) 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 or the Sessions Judge may direct that any Magistrate of the First Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and 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 India." 8. It is neither in doubt nor in dispute that sub-section (1) of the said provision is in two parts-the first part provides for proof of jurisdictional fact in respect of abscondence of an accused person and the second that there was no immediate prospect of arresting him. In the event, an order under the said provision is passed, deposition of any witness taken in the absence of in accused may be used against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. 9. I may also take notice of Section 33 of the Evidence Act, 1872, which reads as under: "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 person authorised 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. Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section." 10. The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right. The Sixth Amendment of the United States Constitution explicitly provides therefor, which reads as under: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witness-ses against him; to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence." 11. I may, however, notice that such a right has not yet been accepted as a fundamental right within the meaning of Article 21 of the Constitution of India by the Indian courts. In the absence of such an express provision in our constitution, I have to proceed on a premise that such a right is only a statutory one. 12. An accused is, however, always entitled to a fair trial. He is also entitled to a speedy trial but then he cannot interfere with the governmental priority to proceed with the trial which would be defeated by conduct of the accused that prevents it from going forward. In such an event several options are open to courts. What, however, is necessary is to maintain judicial dignity and decorum. I will proceed on the premise that for invocation of the provisions of Section 299 of the Code the principle of natural justice is inbuilt in the right of an accused. 13. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. 14. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. 14. In Nirmal Singh vs. State of Haryana, (2000) 4 SCC 41 , the Apex Court held as under: 3. Mr. Mahabir Singh, the learned counsel appearing for the respondent State, on the other hand contended that the five persons having been reported to be dead, their statements recorded under Sec.299 Cr.P.C. were tendered in evidence, which had been exhibited as Exhibits PW.48/A to PW-48/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 Sec. 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 Sec. 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, where after the statements recorded under Sec. 299 Cr.P.C. were tendered in evidence in the 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 Sec. 465 of the Code of Criminal Procedure, more so, when the accused had not raised any objection at any earlier stage of the proceeding. 4. In view of the rival stand of the parties, the sole question that arises for consideration is under what circumstances and by what method, the statements of five persons could have been tendered in the case for being admissible under Section 33 of the Evidence Act and whether they can form the basis of conviction. Section 299 of the Code of Criminal Procedure consists of two parts. Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with. In other words, before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure. In the case in hand, there is no grievance about non-compliance with any of the requirements of the first part of sub-section (1) of Section 299 CrPC. When the accused is arrested and put up for trial, if any such deposition of any witness is intended to be used as evidence against the accused in any trial, then the court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable. The entire argument of Mr. Gopal Subramanium, appearing for the appellant is that any one of these circumstances, which permits the prosecution to use the statements of such witnesses, recorded under Section 299(1) must be proved and the court concerned must be satisfied and record a conclusion thereon. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable. In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable. In the case in hand, there is no order of the learned trial Judge, recording a conclusion that on the materials, he was satisfied that the persons who are examined by the Magistrate under Section 299(1) are dead, though according to the prosecution case, it is only after summons being issued and the process-server having reported those persons to be dead, their former statements were tendered as evidence in trial and were marked as Exhibits PW.48/A to PW.48-E. As has been stated earlier, since the law empowers the court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied the opportunity of cross-examining the witnesses, it is, therefore, necessary that the preconditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the preconditions before tendering the evidence. The Privy Council, in fact in the case of Chainchal Singh vs. Emperor1 AIR p. 1 in analysing the applicability of Section 33 of the Evidence Act, did come to the conclusion that when the evidence given by the prosecution witness before the committing Magistrate is sought to be admitted before the Sessions Court under Section 33 on the ground that the witness was incapable of giving evidence, then that fact must be strictly proved and this may be more so in those cases where the witness was not cross-examined in the committing Magistrate's Court by reason of the accused not having been represented by a counsel. In that particular case the process-server had been examined, who stated that he found the witness ill and unable to move from his house, but that was not treated to be sufficient to hold that the prosecution had discharged its burden of proving that the witness was not available. But having said so, their Lordships did not interfere with the conviction on the ground that the court can interfere only if it is satisfied that grave and substantial injustice has been caused by misreception of the evidence in the case. On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that the preconditions in both the sections must be established by the prosecution and it is only then, the statements of witnesses recorded under Section 299 Cr.P.C. before the arrest of the accused can be utilised in evidence in trial after the arrest of such accused only if the persons are dead or would not be available or any other condition enumerated in the second part of Section 299(1) of the Code of Criminal Procedure is established. In the case in hand, after the process-server reported the fact of death of the persons concerned, who were summoned as witnesses and whose statements had already been recorded under Section 299 CrPC on the application of the prosecution, the said statements were tendered as evidence and have been exhibited as Exhibits PW.48-A to PW-48/E. The learned Sessions Judge as well as the High Court relied upon the said statements for basing the conviction of the appellant. So far as compliance with the first part of Section 299(1) is concerned, the same is established through the evidence of PW.28, who at the relevant time was working in the army as well as the SHO, Safidon also submitted before the Magistrate that the arrest of the accused could not be procured, as he was absconding and in fact there was an order from the Magistrate for issuance of proclamation under Section 82 of the Code of Criminal Procedure. The High Court in fact, on consideration of the entire materials did record a finding that the requirements of the first part of Section 299 of the Code of Criminal Procedure must be held to have been established and there was no illegality in recording the statements of the five persons as the accused had been absconding and there was no immediate prospect of the arrest of the said accused. So far as the requirement of the second part of Section 299 of the Code of Criminal Procedure is concerned, the impugned judgment of the High Court indicates that the Court looked into the original records and it was found that the summons had been sent by the learned trial Judge, summoning the witnesses repeatedly to appear before the trial court and on every occasion, the summons were received back with the report that the persons had already died. The High Court has also indicated as to how on each occasion, summons issued to the five witnesses had been returned back with the report that the persons were dead. 15. In the light of the provisions of the code of criminal procedure, Evidence Act and the judgments of the Apex Court I may now examine the order passed by the trial court on the application filed by the accused petitioner under Section 313 Cr.P.C. 16. 15. In the light of the provisions of the code of criminal procedure, Evidence Act and the judgments of the Apex Court I may now examine the order passed by the trial court on the application filed by the accused petitioner under Section 313 Cr.P.C. 16. In the application dated 16.12.2011, the accused petitioner and two other accused stated as under: ^^;g fd mDr izdj.k esa izkFkhZx.k ds c;ku /kkjk 313 n.M izfØ;k lafgrk esa fn- 31-1-2009 dks fy;s x;s Fks] rc izxfr O;kl o osn O;kl xokgku ds c;ku ugha gq, FksA izxfr O;kl ds c;ku ekuuh; mPpre U;k;ky; ds vkns'kkuqlkj fnukad 21-9-2011 o 24-9-2011 dks izkFkhZx.k dh mifLFkfr esa fy;s x;sA 3- ;g fd izkFkhZx.k ds c;ku eqyfte esa vkt U;k;ky; }kjk izxfr O;kl ds c;ku fnukad 27-11-1999 ds vk/kkj ij iz'u iwNk tk jgk gS] tks ugha iwNk tk ldrk] mDr c;ku izkFkhZx.k dh vuqifLFkfr esa fy;k x;k Fkk] blfy, mDr c;ku izkFkhZx.k ds fo:) dkuwuu i<k ugha tk ldrk rFkk izkFkhZx.k ls n.M izfØ;k lafgrk dh /kkjk 313 ds rgr iz'u iwNk ugha tk ldrkA tcfd izxfr O;kl dk mDr c;ku gqvk] rc izkFkhZx.k ds fo:) vkjksi i= izLrqr ugha fd;k x;k Fkk vkSj c;ku /kkjk 273 n.M izfØ;k lafgrk ds vuqlkj izkFkhZx.k dh mifLFkfr esa ugha fy;s x;s Fks] blfy, mDr c;ku izkFkhZx.k ds fo:) ugha i<+k tk ldrk gS vkSj uk gh bl c;ku ds vk/kkj ij /kkjk 313 n.M izfØ;k lafgrk ds vUrxZr dksbZ iz'u izkFkhZx.k ls iwNk tk ldrk gSA 4- ;g fd izkFkhZx.k dk c;ku iwoZ esa fnukad 31-1-2009 dks fy;k x;k Fkk] rc Hkh izxfr O;kl dk mDr c;ku fnukad 27-11-1999 dk i=koyh esa ekStwn Fkk] ijUrq mDr loky mlls ugha iwNk x;k D;ksafd mDr c;ku izkFkhZx.k dh mifLFkfr esa ugha gqvk FkkA 5- ;g fd izxfr O;kl dk c;ku fnukad 21-9-2011 o 24-9-2011 esa izxfr O;kl }kjk mlds lkFk fdl LFkku fdl o"kZ] fdl efguk ;k fdl rkfj[k esa vU; O;fDr;ksa ds lkFk feydj cykRdkj djuk ugha dgk gS] blfy, ftu O;fDr;ksa ds lkFk feydj cykRdkj djuk ugha dgk x;k gS] muds lEcU/k esa Hkh dksbZ iz'u /kkjk 313 n.M izfØ;k lafgrk ds rgr ugha iwNk tk ldrk gSA 6- ;g izkFkhZx.k ls bl izdkj ds iz'u iwNus ls izkFkhZx.k dk dsl izh-T;wMhl gks jgk gSA 7- ;g fd /kkjk 313 n.M izfØ;k lafgrk esa mi/kkjk ¼5½ fnukad 31-12-2009 dks tksM+k x;k gS ftlesa /kkjk 313 n.M izfØ;k lafgrk ds c;ku eqyfte rS;kj djrs oDr iz'u ds lcU/k esa cpko i{k ls enn yh tk ldrh gSA vr% izkFkZuk i= izLrqr dj fuosnu gS fd izkFkhZx.k ds c;ku vUrxZr /kkjk 313 n.M izfØ;k lafgrk esa tks iz'u iwNs tk;s og izxfr O;kl ds iwoZ c;ku fnukad 27-11-1999 ds vk/kkj ij ugh iwNus dh d`ik djs] dsoy izkFkhZx.k dh mifLFkfr esa gq, c;ku ds vk/kkj ij gh /kkjk 313 n.M izfØ;k lafgrk ds vUrxZr c;ku fy;s tk;sA** 17. The crux of the application is that the statements of Pragati Vyas recorded earlier on 27.11.1999 by the court may not be taken into consideration as the same were not taken into consideration when earlier the statement of the accused petitioner was recorded on 31.1.2009. Now as per the orders of the Apex Court the statement of Pragati Vyas was recorded by the trial court on 21.9.2011 and 24.9.2011 in the presence of the accused petitioner should be taken into consideration while recording his statement under Section 313 Cr.P.C. and not statement of Pragati Vyas which was recorded earlier on 27.11.1999. 18. Now as per the orders of the Apex Court the statement of Pragati Vyas was recorded by the trial court on 21.9.2011 and 24.9.2011 in the presence of the accused petitioner should be taken into consideration while recording his statement under Section 313 Cr.P.C. and not statement of Pragati Vyas which was recorded earlier on 27.11.1999. 18. In the order dated 23.12.2011, the trial court observed as under: ^^tgka rd /kkjk 313 na-iz-la- ds vUrxZr izkFkhZx.k ds ijh{k.k dk lEcU/k gS tSlkfd /kkjk 313 lhvkjihlh dh 'kCnkoyh ls gh ;g Li"V gS fd /kkjk 313 lhvkjihlh ds vUrxZr U;k;ky; vfHk;kstu ekeys ij tujyh vfHk;qDrksa ls iz'u dj ldsxkA bl lEcU/k esa ekuuh; loksZPp U;k;ky; us U;k; n`"VkUr 2009 lhvkj,yts 2962 ¼,llh½ j.kohj ;kno cuke fcgkj jkT; esa fofu'p; fn;k gS fd bl /kkjk esa ^tujyh* 'kCn ls rkRi;Z ;g gS fd U;k;ky; }kjk tks iz'u iwNs tk;s oks lEiw.kZ vfHk;kstu ekeys ls lEcfU/kr gksA ;fn ih-MCYkw-1] izxfr O;kl ds dFkuksa dks vk/kkj ekurs gq, izkFkhZx.k ls /kkjk 313 lhvkjihlh ds vUrxZr iz'u ugha iwNs tk;saxs rks ml lwjr esa izkFkhZx.k dk ijh{k.k vUrxZr /kkjk 313 lhvkjihlh dks fof/k lEer ugha dgk tk ldsxkA fo}ku vfHkHkk"kd izkFkhZx.k dh bl nyhy ls ge lger ugha gS fd ,sls iz'u iwNus ls izkFkhZx.k dks dksbZ izT;wfMl dkWt gksxkA ekeys ds bl izØe ij ;g rF; fopkj djus ;ksX; ugha gS fd vfHkys[k ij vfHk;kstu dh vksj ls tks dqy lk{; izLrqr dh xbZ gS ml lk{; esa ls izkFkhZx.k ij yxs vkjksiksa ds Øe esa oDr fu.kZ; fdl lk{; dks mi;ksx esa fy;k tk ldsxk o fdl lk{; dks ughaA /kkjk 313 lhvkjihlh ds vUrxZr vfHk;qDrksa ds ijh{k.k ds le; bl fcUnw ij fopkj fd;k tkuk mfpr ugha gSA cgjgky tks Hkh lk{; izkFkhZx.k vfHk;qDrx.k ds fo:) vfHkys[k ij izrhr gksrh gS rks ml lk{; ds vk/kkj ij vfHk;qDrksa dk ijh{k.k /kkjk 313 lhvkjihlh ds vUrxZr fd;k tk ldrk gSA bu ifjfLFkfr;ksa esa /kkjk 273 lhvkjihlh o /kkjk 33 lk{; vf/kfu;e /kkjk 313 lhvkjihlh ds vUrxZr vfHkys[k ij ekStwn lk{; ds vk/kkj ij vfHk;qDrksa dk ijh{k.k djus esa ck/kk iSnk ugha djrhA fo}ku vfHkHkk"kd izkFkhZx.k dh vksj ls tks U;k; n`"VkUr izLrqr fd;s x;s muesa U;k; n`"VkUr 2011¼1½ ØkbZEl ist 369 ¼iatkc ,.M gfj;k.kk½ /kkjk 319 lhvkjihlh ds lanHkZ esa gS rFkk ;g Hkh bl fcUnq ij fd vfHk;qDrksa dh vuqifLFkfr esa ys[kc) lk{; dks mudh nks"kflf) dk vk/kkj ugha cuk;k tk ldrk tcfd gLrxr izdj.k esa fcUnq /kkjk 313 lhvkjihlh ds vUrxZr vfHk;qDrksa ds ijh{k.k dk gSA U;k; n`"VkUr 2004 lhvkj,yts ist 4252 ls lEcfU/kr ekeys esa ;g fofu'p; fn;k x;k gS fd /kkjk 312 lhvkjihlh ds vUrxZr ijh{kdksa vkSipkfjd ugha ekuk tk;s rFkk vfHk;qDr dks mlds fo:) vfHkys[k ij lk{; esa izdV ifjfLFkfr;ksa dk Li"Vhdj.k fn;s tkus dk mls mfpr volj iznku fd;k tk;s] bl U;k; n`"VkUr ls Hkh vfHk;qDr i{k dks dksbZ ykHk ugha feyrk D;ksafd ih-MCyw- 1 izxfr O;kl ds dFkuksa esa tks rF; vk;s mu ij izkFkhZ-vfHk;qDrksa dks viuk i{k Li"V djus dk volj feysxk vr% ;g iz'u iwNus ls os fdlh izdkj dh izT;qfMl ugha gksrsA U;k; n`"VkUr 1988 ¼2½ ØkbZEl ist 323 ¼dydRrk½ ls lEcfU/kr ekeys esa fcUnq /kkjk 319 lhvkjihlh ls lacaf/kr Fkk vfHk;qDr tks fd /kkjk 319 lhvkjihlh esa vfHk;qDr cuk;s x;s Fks fd vuqifLFkfr esa iwoZ esa ys[kc) lk{; dks nks"kflf) dk vk/kkj ugha cuk;s tkus dh QkbZf.Mx nh Fkh tcfd gLrxr ekeys esa izØe fu.kZ; dk ugha gS c;ku eqyfte dk gSA U;k; n`"VkUr 1975 lhvkj,yts ist 1402 ls lEcfU/kr ekeys esa Hkh fHkUu rF;ksa ij gS tks bl ekeys pLik ugha gksrkA blh izdkj U;k; n`"VkUr 2000 lhvkj,yts ist 1803 ls lEcfU/kr ekeys esa ekuuh; mPpre U;k;ky; }kjk ;g QkbZf.Mx nh xbZ Fkh fd tc rd /kkjk 33 lk{; vf/kfu;e dh ifjfLFkfr;ka ekStwn u gks rc rd /kkjk 299 ds vUrxZr lkf{k;ksa ds dFkuksa dks nks"kflf) dk vk/kkj ugha cuk;k tk ldrk tcfd gekjs le{k ekeys dk izØe c;ku eqyfte dk gS vr% bl U;k; fu.kZ; ls Hkh izkFkhZx.k-vfHk;qDrx.k dks dksbZ ykHk ugha feyrkA U;k; n`"VkUr 1985 lhvkj,yts ist 1773 esa Hkh U;k; n`"VkUr ds fl)kUr mijksDr vk/kkjksa ij izkFkhZx.k dks dksbz ennxkj ugha gSA U;k; n`"VkUr MCyw ,ylh ¼,l-lh-½ fØfeuy 2009¼2½ ist 166 ls lEcfU/kr ekeys esa ;g er fn;k x;k gS fd vkjksiksa dk lkj vfHk;qDr ds le{k ugha j[kus ds dkj.k mldh nks"keqfDr mfpr gS tcfd gekjs le{k bl izØe ij nks"keqfDr ;k nks"kfl) dk iz'u fopkjk/khu ugha gS vr%mDr U;k; n`"VkUr ls Hkh izkFkhZx.k dk dksbZ ykHk ugha feyrkA U;k; n`"VkUr MCyw-,y-lh- ¼,l-lh-½ fØfeuy 2009¼2½ ist 302 esa ekuuh; loksZPp U;k;ky; us lhvkjihlh dh /kkjk 313 dh ikyuk ds egRo ij cy fn;k gS vr% mDr U;k; n`"VkUr ls Hkh izkFkhZx.k dks dksbZ ykHk ugha feyrk D;ksafd ;fn ih-MCyw- 1 izxfr O;kl }kjk fd;s x;s dFku ds lEcU/k esa izkFkhZx.k dks iz'u ugha fd;s x;s rks izkFkhZ vfHk;qDrx.k mDr c;kuksa ds lEcU/k esa viuh fLFkfr Li"V djus ls oafpr gksaxsA mijksDr foospuk/khu izkFkhZx.k vfHk;qDrx.k ujsUnz flgkx] gjh'k flgkx] jkts'k lgkj.k dfiy j.kok o 'ks"kdj.k dh vkSj ls izLrqr rhuksa izkFkZuk i= lkjghu gS tks [kkfjt fd;s tkus ;ksX; gksus ls [kkfjt fd;s tkrs gSaA vkns'k vkt fnukad 23-12-2011 dks fy[kk;k tkdj [kqys U;k;ky; esa lquk;k x;kA** 19. I am in agreement with the findings recorded by the trial court which are based on the provisions of the criminal procedure code and the various rulings cited by the counsel for the parties. The findings recorded by the trial Court are not perverse. It is true that the statement of Pragati Vyas was recorded on 27.11.1999 when the accused petitioner was not before the court and thereafter in his presence statement of Pragati Vyas was recorded and the accused petitioner and his counsel were having enough opportunity to cross examine Pragati Vyas on her statement recorded earlier on 27.11.1999 and hence even if his statement which were earlier recorded on 27.11.1999 are to be taken into consideration while recording the statement of the accused under Section 313 Cr.P.C. after recording the statement of Pragati Vyas, no prejudice is caused to the accused petitioner as the accused petitioner and his counsel both were present when her statement was recorded on 21.9.2011 and 24.9.2011. The order of the trial Court rejecting the application of the accused petitioner not to take into consideration the earlier statement of Pragati Vyas which were recorded in his absence, for recording the statement of the accused under Section 313 Cr.P.C. is not perverse. The order of the trial Court is in accordance with the law laid down by the Apex Court and the provisions of the code of criminal procedure and the Evidence Act. No prejudice is caused to the petitioner while taking into consideration the statement of Pragati Vyas which were recorded earlier in the Court on 27.11.1999. Since the findings are based on the provisions of the code of criminal procedure and the Evidence Act and the rulings of the Apex Court, the other rulings cited by the counsel for the parties are not taken into consideration as the same are not applicable to the facts of this case. 20. For the reasons mentioned above, this criminal misc. petition against the order dated 23.12.2011 of the Addl. Sessions Judge Fast Track No. 1 Jaipur Metropolitan in Sessions Case No. 9 of 2008 stands dismissed. The stay application also stands dismissed. The trial Court is directed to proceed further in the matter expeditiously.