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Madhya Pradesh High Court · body

2017 DIGILAW 24 (MP)

Banmali Kushwah v. State of M. P.

2017-01-04

G.S.AHLUWALIA

body2017
ORDER : G.S. Ahluwalia, J. 1. Shri D.R. Sharma, Counsel for the applicant. Shri Prakhar Dhengula, Panel Lawyer for the respondent/State. 2. This petition under Section 482 of Cr.P.C. has been filed against the order dated 20-2-2015 passed by Special Judge (MPDVPK Act), Datia in special Case No. 22/2003, by which an application filed by the applicant under Section 311 of Cr.P.C. for recalling the witnesses, who were examined after 25-6-2008 has been rejected. 3. The necessary facts for the disposal of this petition are that the applicant along with other co-accused persons are facing trial. On 25-6-2008 the applicant did not appear before the trial Court and, therefore, arrest warrant was issued and recording of evidence started. Certain witnesses were examined during the period when he was absconding and, therefore, neither the applicant nor his counsel could examine those witnesses. After the applicant was arrested then he filed the application under Section 311 of Cr.P.C. for recalling the witnesses who were examined in his absence. The application was rejected by order dated 20-2-2015 on the ground that the applicant himself had absconded and by order dated 25-10-2008 the proceedings against the applicant were separated and, therefore, his application for recalling the witnesses for further cross-examination cannot be accepted. 4. It is submitted by the counsel for the applicant that although the applicant did not appear before the trial Court and arrest warrant was issued against him and proceedings were also separated from the trial, but no specific order under Section 299 of Cr.P.C. was passed by the trial Court and in absence of such order, it cannot be said that the applicant has waived his right to cross-examine the witnesses. Further, it is submitted by the counsel for the applicant that cross-examination of a witness is only an important to make available the accused to prove his innocence. If the applicant is not permitted to cross-examine the witnesses, who were examined during the period of his absence, then he would suffer irreparable loss, therefore, it is submitted that even otherwise, the principle of natural justice demands that the applicant must get fair chance to face the trial. Thus, the order passed by the trial Court on 20-2-2015 is liable to be set aside. 5. Thus, the order passed by the trial Court on 20-2-2015 is liable to be set aside. 5. Per contra, the learned counsel for the State submits that as the applicant himself had absconded and since the proceeding were separated, therefore, the applicant himself by his conduct has waived his right to cross-examine the witnesses, who were examined at the trial during the period on his absence. Therefore, the application has rightly been rejected by the trial Court. Heard the learned counsel for the parties. 6. Before adverting to the facts of the case, it would be appropriate to take note of the provision of Section 273 and 299 of Cr.P.C. Section 273 of Cr.P.C. reads as under: '273. Evidence to be taken in presence of accused-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: (Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused) Explanation.- In this section, 'accused' includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.'? 7. From the plain reading of Section 273 of Cr.P.C., it is clear that all the evidence which are taken in the course of trial or other proceeding shall be taken either in presence of the accused or where his personal attendance is dispensed with, in the presence of his pleader. However, there are certain exception to Section 273. Section 299 of Cr.P.C. reads as under:- '299. However, there are certain exception to Section 273. Section 299 of Cr.P.C. reads as under:- '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 absece, 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 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. From the plain reading of Section 299 of Cr.P.C., it is clear that where an accused has absconded and where there is no immediate prospect of arresting him, then the competent Court to try such person for offence, may, examine the witness in the absence of accused and record such deposition, may, on the arrest of such person, be given in evidence against him. 10. The Supreme Court in the case of Jayendra Vishnu Thakur v. State of Maharashtra and another (2009) 7 SCC 104 : (2009 AIR SCW 3898, paras 13, 14, 16 & 17) has held as under: 15. We must at this stage also consider the effect of the relevant provisions of the Code. Chapter XXIII of the Code provides for evidence in inquiries and trials. We must at this stage also consider the effect of the relevant provisions of the Code. Chapter XXIII of the Code provides for evidence in inquiries and trials. 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. 16. 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 not 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.' 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 abscontion 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 absence of an 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. 17. Now, we must 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 question 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. 18. The right of an accused to watch the prosecution witnesses deposing before a court of law indisputably is a valuable right. 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. 18. 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 explicity 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 witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.' We 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 absence of such an express provision in our constitution, we have to proceed on a premise that such a right is only a statutory one. 19. The larger question, namely as to whether right to confront a witness by an accused is a fundamental right or not, in our opinion, need not be gone into by us in these proceedings as the appellant does not question the constitutionality of either Section 299 of the Code or Section 14(5) of TADA or Section 33 of the Evidence Act. 20. In the context of our constitutional scheme; fundamental rights are not absolute being subject to reasonable restrictions. There lies a distinction between Bill of Rights contained in the Constitution of the United States and the Fundamental Rights provided for in the Indian Constitution. In Jack R. Goldberg v. John Kelly, 25 L. Ed 2d 287 it was inter alia held that even in a civil proceeding the 6th Amendment is applicable, stating:- 'The fundamental requisite of due process of law is the opportunity to be heard.' Grannis v. Ordean, 234 U.S. 385, 394, 58 L Ed 1363, 1369, 34, SCt 779 (1914). The hearing must be' at a menaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 14 LEd 2d 62, 66, 85 S Ct 1187 (1965). The hearing must be' at a menaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545, 552, 14 LEd 2d 62, 66, 85 S Ct 1187 (1965). In the present context, these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.' 21. The Court further relied on the following observations from Greene v. Mc Elorey, 3 LEd 2d 1377. 'Certain principles have remained relatively immutable in our jurisprudence. One of these is that, where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment .... This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, ... but also in all types of cases where administrative ... actions were under scrutiny.' Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department.' 22. We may, however, notice that even in the United States of America, the accused's right under the Sixth Amendment is not absolute. The right of confrontment of an accused is subject to just exceptions, including an orderly behaviour in the courtroom. In case of disruptive behaviour an accused can be asked to go outside the court room so long he does not undertake to behave in an orderly manner. It was so held in State of Illinois v. William Allen, reported in 397 US 337. 23. An accused is, however, always entitled to a fair trial. In case of disruptive behaviour an accused can be asked to go outside the court room so long he does not undertake to behave in an orderly manner. It was so held in State of Illinois v. William Allen, reported in 397 US 337. 23. 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. The question which arises for consideration is whether the same will take within its umbrage the said principle. We will examine the said question a little later. We 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. 24. 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. If an exception is to be curved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradiction Act, 1962 which excludes taking of evidence viz-a-viz opinion. (See - Sarabjit Rick Singh v. Union of India, (2008) 2 SCC 417 : (AIR 2008 SC (Supp) 368) 25. It is also beyond any cavil that the provisions of Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character. It is a well known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. It is a well known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. Under Section 3 of the Evidence Act like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character. 29. Indisputably both the conditions contained in the first part of Section 299 of the Code must be read conjunctively and not disjunctively. Satisfaction of one of the requirements should be not sufficient. It was thus, obligatory on the part of the learned court to arrived at a finding on the basis of the materials brought on record by bringing a cogent evidence that the jurisdictional facts existed so as to enable the court concerned to pass an appropriate order on the application filed by the Special Public Prosecutor. 30. Section 299 of the New Code corresponds to Section 512 of the Old Code. The applicability of the aforementioned provisions came up for consideration before some of the High Courts. We will notice a few of them. 31. In Rustam v. Emperor, AIR 1915 All 411, the Allahabad High Court held as under :- 'It is clear from the language of the section that the Court which records the proceedings under it, must first of all record an order that in its opinion, it has been proved that the accused has absconded and that there is no immediate prospect of his arrest. No such finding appears on the file of 1897; in fact no evidence was taken in that year to show that the present appellant was absconding and that there was no immediate prospect of his arrest. The evidence of 1897 being in-admissible, the conviction of the appellant on the basis of such evidence cannot stand.' 32. To the same effect is the decision of the Madras High Court in Mysore v. Sanjeeva, AIR 1956 Mys. The evidence of 1897 being in-admissible, the conviction of the appellant on the basis of such evidence cannot stand.' 32. To the same effect is the decision of the Madras High Court in Mysore v. Sanjeeva, AIR 1956 Mys. 1 wherein it was held :- '(14) The question also arises as to what constitutes absconding. The word 'absconder' is not defined in the Code of Criminal Procedure. It occurs in other provisions of criminal law e.g. Section 87 and 90(a), Cr.P.C. and Section 172, I.P.C. From the context and object of these provisions an absconder may be said to be one who intentionally makes himself inaccessible to the processes of law. Hence it is not enough if it is shown that it was not possible to trace him soon after the occurrence. It has also to be established that he was available at or about the time of the commission of the alleged offence and ceased to be available after the commission of the offence, before he can be treated as an absconder. Similarly, it has to be established that there is no immediate prospect of arresting the accused. Then the question arises, whether it is enough if the material on record shows that these conditions have been fulfilled or whether it is necessary that the recording Court should explicitly state that it has so satisfied itself before the deposition is actually recorded.' 33. Such jurisdictional facts must be existing on this date of passing of the order. 34. In Shiv Chander Kapoor v. Amar Bose, (1990) 1 SCC 234 : ( AIR 1990 SC 325 ) this Court held:- '12. We have no doubt that the language of Section 21 of the Act clearly forbids the Controller from embarking on an enquiry beyond the ambit of Section 21 itself which way impinge into the sphere of Section 14 of the Act or any other law. We have no hesitation in holding that it is the existence of the aforesaid jurisdictional facts at the time of grant of permission to create a limited tenancy which alone is required to be determined by the Controller, if and when, validity of his permission is assailed at a subsequent stage. This being the scope of his enquiry while granting permission, the scope of enquiry at the subsequent stage cannot be wider. This being the scope of his enquiry while granting permission, the scope of enquiry at the subsequent stage cannot be wider. For this reason any objection to the validity of the permission on a ground other than non-existence of the jurisdictional facts at the time of grant of permission is untenable and beyond the scope of the Controller's power to examine validity of his earlier permission before directing restoration of possession to the landlord under Section 21 of the Act.' 35. In Manboth v. Emperor, AIR 1944 Nag 274, Nazir Ahmad v. Emperor [ AIR 1936 PC 253 : 17 Lah. 629] and Rustam (supra) was followed. We must, however, notice that in Bhagwati v. Emperor, [AIR 1918 All 60], the Allahabad High Court held :- 'The section nowhere says that the Magistrate must record a finding. We wish to make it quite clear that in our opinion a Magistrate before recording evidence under Section 512 ought to be satisfied that the accused is absconding and that there is no immediate prospect of his arrest, and it is certainly advisable that he should recite in his order that he finds this to be the case. However, in this case we find that the Magistrate had clear evidence that the accused were absconding, and evidence from which the Magistrate might reasonably infer that there was no immediate prospect of their arrest. In his order he expressly states that he is taking the evidence under Section 512. The presumption is that the Magistrate did his duty and did not record the evidence under Section 512 unlawfully. In our opinion the mere fact that the learned Magistrate did not recite a finding that there was no immediate prospect of the arrest of the accused does not render the evidence inadmissible.' We, with utmost respect, do not agree. There is no such presumption in law. An order of that nature must exhibit total application of mind. A judicious approach is imperative. For the said purpose the courts must bear in mind that an accused has a Fundamental Right as also Human Right. The term 'proved' having been used in the Section, providing for an exception to the general rule, was required to be strictly construed. It was not an ipse dixit of the Magistrate that would be sufficient for attracting an extra ordinary provision. The term 'proved' having been used in the Section, providing for an exception to the general rule, was required to be strictly construed. It was not an ipse dixit of the Magistrate that would be sufficient for attracting an extra ordinary provision. The Magistrate was required to apply his mind to arrive at a definitive finding on the basis of the materials on record, in absence whereof, his order must be held to be arbitrary and thus, without jurisdiction. 36. We may, however, notice that in Janu v. Emperor, AIR 1947 Sind 122, a Division Bench of the Court held :- 'Now, when the section says 'if it is proved', we think, it must mean, if it is proved according to evidence, properly, admissible under Evidence Act.' Bhagwati (supra) has been distinguished stating :- '16........But reference to that case itself shows that the Magistrate had recorded evidence under the provisions of Section 512. He actually put on the record a finding that the accused had absconded, but did not go on further to say that there was no immediate prospect of their arrest. There was, however, evidence on the record from which the Magistrate might have reasonably inferred that there was no immediate prospect of arrest. ......... That case is, indeed, authority for the statement that if evidence is on record that the accused were absconding and there was no immediate prospect of their arrest the absence of a formal finding to that effect does not invalidate the proceedings. Section 512, indeed does not state that there should be a formal finding. But obviously Section 512 requires that there should be upon record evidence properly admissible under the Evidence Act.' (See also Ghurbin Bind v. Queen Empress, 1884 (10) ILR Cal 1097 wherein it has been held that the fact of absconding to be alleged, tried and established).. 37. We may, at this stage, also notice a decision of this Court in Nirmal Singh v. State of Haryana, [ (2000) 4 SCC 41 : ( AIR 2000 SC 1416 )] wherein it was held that Section 299 of the Code is in two parts. In that case the Magistrate, who had recorded the statements under Section 299 of the Code, was examined to indicate that in fact he had recorded the statements. In that case the Magistrate, who had recorded the statements under Section 299 of the Code, was examined to indicate that in fact he had recorded the statements. Cross-examination of the said Magistrate was necessary as there was a dispute as to whether there was any material that the persons whose statements had been recorded were died or not. It was in that context this Court opined:- '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, where after the statements recorded under Section 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 Section 465 of the Code of Criminal Procedure, more so, when the accused had not raised any objection at any earlier stage of the proceeding.' 38. This Court did not say as was contended by Mr. Nafade that non-compliance of Section 299 would be an irregularity. What was considered to be an irregularity was non recording of a statement that the persons concerned were dead. In fact the discussions on Section 299 of the Code and Section 33 of the Evidence Act starts from paragraph 4 wherein it was categorically held :- '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 sic (and) 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 Cr. 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 Cr. P.C. 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 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.' 40. The term 'absconding' has been defined in several dictionaries. We may refer to some of them. 'Black's Law Dictionary' - To depart secretly or suddenly, esp. to avoid arrest, prosecution or service of process. P. Ramanatha Aiyar - primary meaning of word is 'to hide'. Oxford English Dictionary - 'To bide or sow away-Words and Phrases - 'clandestine manner/intent to avoid legal process' . 41. In Kartarey v. State of U.P., (1976) 1 SCC 172 : AIR 1976 SC 76 , para 42) this Court held : '43. Further it is wrong to say that Baljeet never absconded. Contrary to what Baljeet has said in his examination under Section 342 of the Cr. P.C., the Investigating Officer, PW 7, testified that Baljeet was found hiding in a chhappar in the village from where he was arrested. This account of Baljeet's arrest was not challenged in cross-examination. To be an 'absconder' in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home. We therefore, do not find any ground to distinguish the case of Baljeet from that of Sitaram and to treat him differently.' The Supreme Court in the case of Vijay Ranglal Chourasia v. State of Gujarat (2014) 12 SCC 400 : (AIR 2014 SC (Supp) 1564)s has held as under :- (20) The High Court does not appear to have been taken note of the above rejection order. It has, on the contrary, proceeded on the basis that the evidence in the case against the appellant validity transferred under Section 299 of the Code of Criminal Procedure. It has, on the contrary, proceeded on the basis that the evidence in the case against the appellant validity transferred under Section 299 of the Code of Criminal Procedure. That apart even assuming that the deposition in terms of Section 299 of the Code of Criminal Procedure had been transferred to the case against the appellant, it may have been open to the petitioners to argue that such a transfer was not valid in the eyes of law and could not, therefore, be read against him. Reliance before us was placed upon the decision of this Court in Jayendra Vishnu Thakur v. State of Maharashtra & Another, (2009) 7 SCC 104 : (2009 AIR SCW 3898) which deals with some of these aspects. (21) The High Court has, it is evident from the impugned order, remained oblivious of the above aspects and proceeded to appreciate the evidence adduced in the previous Sessions Case No. 99 of 1998 as though the said evidence had been adduced in the case against the appellant. In doing so, the High Court committed an error. The High Court ought to have addressed two questions falling for determination before it, viz. (i) whether evidence recorded in Sessions Trial No. 99 of 1998 was and/or could be transferred to the case against the appellant and read against him and, (ii) if such evidence recorded in Sessions Case No. 99 of 1998 was not or could not be transferred, was there any other evidence to support an order of conviction against him. Both these questions having escaped the attention of the High Court, the case would, in our opinion, call for a remand to the High Court to enable it to hear and dispose of matter afresh. (22) In the result, we dismiss Criminal Appeal No. 953 of 2009 filed by Vijay Ranglal Chourasiya (A%5 (sic) and Criminal Appeal No. 2297 of 2010 filed by Gautam Kumar (A2). 9. Thus, it is clear that Section 299 of Cr.P.C expressly provides for the power of the Court to record the evidence in absence of the accused, but it should be construed strictly as it is an exception to Section 273 of Cr.P.C which provides that the evidence should be recorded in the presence of the accused. 9. Thus, it is clear that Section 299 of Cr.P.C expressly provides for the power of the Court to record the evidence in absence of the accused, but it should be construed strictly as it is an exception to Section 273 of Cr.P.C which provides that the evidence should be recorded in the presence of the accused. Although, by absconding during the pendency of trial, it can be said that the accused had waived his right to cross-examine the witnesses, however, the right of an accused to cross-examine the witness is a valuable right and re-examination of the witness is also statutory right. Such opportunity should be granted unless and until the provision of Section 299 of Cr.P.C is followed while separating the proceeding on the ground of absence of accused. Although, the accused is entitled to a fair and speedy trial but by his conduct, he cannot be allowed to interfere with the proceeding of the trial. Free and fair trial can be said to be a fundamental right and the principle of natural justice is required to be followed. 10. The Counsel for the State could not controvert the submissions made by the counsel for the applicant that while separating the proceeding of the applicant on the ground of his absence, no specific order under Section 299 of Cr.P.C was passed. 11. Considering the facts and circumstance of the case, although the applicant by not appearing before the trial Court and remaining absent had in fact, tried to interfere with the smooth proceeding of trial but at the same time, keeping in view the principle of natural justice in mind, it would be appropriate to give one opportunity to the applicant to cross-examine the witnesses, who were examined in his absence. 12. The trial Court is directed to recall the witnesses, who were examined in the absence of the applicant. However, the present situation has been created by the applicant himself by not appearing before the trial Court regularly and remaining absent and therefore, indefinite opportunities cannot be granted to him to cross-examine the witnesses. 13. 12. The trial Court is directed to recall the witnesses, who were examined in the absence of the applicant. However, the present situation has been created by the applicant himself by not appearing before the trial Court regularly and remaining absent and therefore, indefinite opportunities cannot be granted to him to cross-examine the witnesses. 13. Under these circumstances, keeping in view the requirement of Section 273 of Cr.P.C. as well as the provision of Section 299 of Cr.P.C. and also looking to the conduct of the applicant, it is directed that the trial Court shall issue notice to the witnesses who were examined in the absence of the applicant for further cross-examination by the applicant only. For any reason if any witness who is called, fails to appear before the trial Court, then an indefinite opportunity cannot be granted to the applicant to prolong the trial merely for the purpose of cross-examination of the witnesses which were examined in the absence of the applicant. Therefore, the trial Court is directed to complete the entire exercise within a period of three months from the date of receipt of certified copy of this order and if for any reason beyond the control of any witness or because of non-service of summons due to the change of address or any reasonable reason if the said witness fails to appear before the trial for cross examination, then the applicant shall not have any opportunity to cross-examine the said witness. 14. The above absorption is being passed looking to the conduct of the applicant by remaining absent from the trial proceedings. Accordingly, this petition succeeds and is hereby allowed. Petition allowed.