JUDGMENT : 1. Heard Mr. Pal Singh Yadav, learned counsel for the petitioner, Mr. Aniruddh Kumar Singh, learned A.G.A. and perused the record. 2. By means of the present petition, the petitioner prayed for following prayers:- i). To pass appropriate order for setting aside the examination in chief of the informant PW-1, the opposite party No.2. (ii). To pass appropriate orders for transfer of trial of criminal case No.1302 of 2018 from the court of Additional Sessions Judge/Special Judge-VII PC Act, Lucknow to any other competent court for trial of the case. (iii). To pass appropriate orders for initiating judicial enquiry in respect of aforesaid proceedings by misusing the powers. 3. Learned counsel for the petitioner submitted that on the written complaint of the Inspector Jai Shankar Singh, the F.I.R. as Case Crime No.240 of 2018, under Sections 7, 13(1)(d), 13(2) of Prevention of Corruption Act, 1988 was registered against the petitioner on 30.05.2018 and after investigation, the charge sheet was filed and the cognizance was taken by the competent court. After framing the charges, the prosecution witness was summoned. He further submitted that the matter was fixed on 06.11.2019. On the said date, the petitioner was unable to attend the court due to illness, as a result, he informed to his counsel and his counsel stated him that he is out of station, therefore, adjournment application would be moved alongwith application for exemption before the trial court by his junior counsel. 4. Learned counsel for the petitioner further submitted that a composite application was moved before the trial court by paying court fees of Rs.5/-for both the prayer (Rs.3 for adjournment and Rs.2 for exemption). 5. Learned counsel for the petitioner further submitted that the prayer for exemption was allowed and he further submitted that as it was properly informed to the trial court by moving the application that the counsel for applicant was out of station, so some other date may be fixed, but without considering the provisions of Section 317 Cr.P.C., the Examination-in-Chief of PW1 was recorded. He further submitted that at about 3:00 p.m., the junior of the counsel for the applicant went to the court and found that prayer for exemption of the applicant was accepted but the Examination-in-Chief of PW1 was recorded in absence of counsel for the applicant, then another application was moved immediately by the junior of the counsel for the applicant with the prayer for the rejection of Examination-in-Chief of PW1, which was recorded in absence of the counsel for the applicant and also requested that the PW1 may be recalled for recording Examination-in-Chief afresh. 6. Learned counsel for the petitioner further submitted that the learned court below did interpolation in the order dated 06.11.2019 and deleted the sentence .Þdsoy vkt ds fy, Lohd`rÞA 7. Learned counsel for the petitioner further submitted that thereafter, the Presiding Officer also endorsed on the application that two prayers cannot be prayed in a single application, hence application is not maintainable rejected and he further submitted that on the second application moved by the junior of the counsel for the applicant for recalling of Examination-in-Chief of PW1, as his Examination-in-Chief was recorded in absence of the accused person as well as counsel for the applicant, but his second application was also rejected by the Presiding Officer. The rejection order dated 06.11.2019 on the second application of the applicant is as under:- 06&11&19 iqdkj djkbZ xbZA vfHk0 dh gk0 ekQh dk Ák0 i= ÁLrqr gSA fujLr gqvkA c;ku ih0MCyw&1 vafdr fd;k x;kA vfHk;qDr ds tq0 vf/k mifLFkrA gLrk{kj ls bUdkj fd;kA fn0 6@12@19 dks okLrs thjg is'kA 8. Learned counsel for the petitioner further submitted that provisions of Section 317 Cr.P.C. clearly provides that in case, the presence of accused is exempted, then the presence of his counsel/lawyer for further proceeding is required. In the present case, by moving one duly stamped application making two prayer one for exemption of the accused and second for adjournment due to personal reasons of the lawyer. In the present case, by moving one duly stamped application making two prayer one for exemption of the accused and second for adjournment due to personal reasons of the lawyer. He further submitted that on the aforesaid application, the presence of the applicant was exempted by the court below, as it was mentioned in the application that the lawyer is out of station, but the Examination-in-Chief of PW1 was recorded in absence of the lawyer of the applicant and when this fact was apprised to the court below, then the interpolation was made in the order and the application was also rejected by endorsing a new order i.e. two prayers were made in the application, therefore, the application was not maintainable. He further submitted that the learned court below failed to appreciate the fact that the application was duly stamped and by making interpolation in the exemption order, the application for exemption was also rejected, but no any process for presence of the applicant was ordered either by the bailable warrant or any other coercive steps. It also reveals that change was made in the order sheet. He further submitted that the Examination-in-Chief of PW1 was recorded in the absence of lawyer of applicant cannot be considered as an evidence, therefore, the same is liable to be rejected and the court below may be directed to recall the PW1 for fresh Examination-in-Chief in presence of the lawyer of the applicant. 9. Mr. Gaurav Mehrotra, Advocate appearing on behalf of the opposite party No.1 informed that written instructions duly signed by the Presiding Officer of the court below are available and the photocopy of the same is taken on record and it is undisputed that at the first instance, the exemption application of applicant was allowed and thereafter, another order was endorsed on the application that two prayers cannot be prayed in a single application not maintainable rejected and on the order sheet, the exemption prayer was rejected on the next moment and he further submitted that there was no misuse of power by the court, no miscarriage of justice is caused to the petitioner by mere recording of Examination-in-Chief of witness and he further submitted that the present Presiding Officer has no objection, in case, the trial of the aforesaid case is being transferred to some other court. 10. 10. Considering the arguments of learned counsel for the petitioner as well as Mr. 10. Considering the arguments of learned counsel for the petitioner as well as Mr. Gaurav Mehrotra, Advocate appearing on behalf of ADJ/Special Judge P.C. Act VII, Lucknow and going through the records, it is undisputed that Case No.1302 of 2018 arising out of Case Crime No. 240 of 2018, under Sections 7/13(1)(d), r/w 13(2) of P.C. Act was fixed for evidence of prosecution witness and the applicant moved an application through junior of his counsel and prayed for his exemption and also prayed for fixing some other date, as his counsel was out of station and at the first instance, his application for exemption was allowed and it seems that the Examination-in-Chief of PW1 was recorded despite the fact that it was informed to the court below that the counsel for applicant was out of station and the case was fixed on 06.12.2019 for cross-examination of PW1, but in the afternoon, by way of second application which read as under:- U;k;ky; Jheku vij ftyk tt@ih0lh0 ,DV 7 egksn; y[kuÅ Okkn la0&1302@18240@1 U/S 7/3 PC ACT Fkkuk%& jk;cjsyh fu;r frfFk%& 6-11-19 ljdkj cuke lat; dqekj ÁkFkZuk i= okLrs LFkxu vkosnu ds mijkUr foi{kh vf/koDrk dh vuqifLFkfr esa xokgh dh dk;Zokgh (PW 1) ij vkifRr@iqu% xokgh PW 1 dh xokgh djk;s tkus ds laca/k esa egksn;] U;k;ky; Jhekuth ds le{k ÁkFkhZ@vfHk;qDr dh vksj ls fuEufyf[kr fuosnu gSA 1- ;g fd mijksDr okn vkt U;k;ky; Jheku th ds le{K fu;r gSA 2- ;g fd mijksDr okn esa ÁkFkhZ@vfHk;qDr ds vf/koDrk vkt fn0 6-11-19 dks U;kf;d dk;Z ls y[kuÅ 'kgj ls ckgj Fks ftldk ftØ gkftjh ekQh ds vkosnu ds lkFk fd;k x;k FkkA blds mijkUr Hkh PW 1 dh xokgh foi{kh vf/koDrk dh vuqifLFkfr esa djokbZ xbZA vr% Jhekuth ls fuosnu gS fd PW 1 dh xokgh ÁkFkhZ@vfHk;qDr ds vf/koDrk dh vuqifLFkfr dks [kkfjt djus dh d`ik djsaA ,oa ÁkFkhZ ds vf/koDrk dh mifLFkfr esa PW 1 dh xokgh iqu% djkus dh d`ik djsaA Jhekuth dh egku d`ik gksxhA y[kuÅ ÁkFkhZ@vfHk;qDr fnukad 6-11-19 }kjk dfu"B le;& 3%00 cts vf/koDrk A request was made in the aforesaid application that some other date may be fixed and the PW1 may be recalled for his Examination-in-Chief a fresh, as his statement was recorded in the absence of learned counsel for the applicant, but his application was rejected by saying that since the Examination-in-Chief of witness has been recorded with due permission of the court, therefore, his application was not maintainable and it is also evident that some changes were made in the order sheet as discussed above. 11. It is also relevant to mention here that the basic canon of criminal jurisprudence is that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. A fair trial, no doubt, should be governing equally the accused, the prosecution or the victims. Prosecution in a Criminal trial gets an opportunity to first lead evidence. The defence cross examines the prosecution witness to escape their veracity. 12. According to Bentham, "Witnesses are the eyes and ears of justice" and the very existence of trial court is only for dispensation of justice, the process of court should not be used for harassment of the parties, as Section 273 Cr.P.C. provides that evidence shall be taken in presence of the accused or in the absence of accused when his personal attendance is dispensed with, in presence of his pleader. 13. As the Hon’ble Supreme Court in the case of Bhaskar Industries Ltd. Vs. Bhawani Denim & Apparels Ltd. and Others reported in (2001) 7 SCC 401 observed that normal rule is that the evidence shall be taken in presence of the accused, however, in absence of the accused such evidence can be taken, but then his counsel must be present. The relevant paras of the judgment are being reproduced as under:- "12. We cannot part with this matter without adverting to the plea made by the second accused before the trial court for exempting him from personal appearance. He highlighted two factors while seeking such exemption. First is that the offence under Section 138 of the Negotiable Instruments Act is relatively not a serious offence as could be seen from the fact that the legislature made it only a summons case. Second is, the insistence on the physical presence of the accused in the case would cause substantial hardships and sufferings to him as he is a resident of Haryana. To undertake a long journey to reach Bhopal for making his physical presence in the court involves, apart from great hardships, much expense also, contended the counsel. He submitted that the advantages the court gets on account of the presence of the accused are far less than the tribulations the accused has to suffer to make such presence in certain situations and hence the court should consider whether such advantages can be achieved by other measures. He submitted that the advantages the court gets on account of the presence of the accused are far less than the tribulations the accused has to suffer to make such presence in certain situations and hence the court should consider whether such advantages can be achieved by other measures. Therefore, he relied on Section 317 of the Code. It reads thus: “317. Provision for enquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an enquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such enquiry or trial, or order that the case of such accused be taken up or tried separately.” 13. Sub-section (1) envisages two exigencies when the court can proceed with the trial proceedings in a criminal case after dispensing with the personal attendance of an accused. We are not concerned with one of those exigencies i.e. when the accused persistently disturbs the proceedings. Here we need consider only the other exigency. If a court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of that accused. In this context, a reference to Section 273 of the Code is useful. It says that: “273. If a court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of that accused. In this context, a reference to Section 273 of the Code is useful. It says that: “273. 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.” If a court feels that insisting on the personal attendance of an accused in a particular case would be too harsh on account of a variety of reasons, can't the court afford relief to such an accused in the matter of facing the prosecution proceedings? 14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case. 15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through facilities of the banks, it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely, such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of a summons case. Not very rarely, such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of a summons case. When a Magistrate feels that insistence of personal attendance of the accused in a summons case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the Magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. 16. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by Magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the “accused appears or is brought before the Magistrate”. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that: “205. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader.” 17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 18. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 18. A question could legitimately be asked — what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not cooperate in proceeding with the case? We may point out that the legislature has taken care of such eventualities. Section 205(2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance." 14. Thus, it is found that the Examination in Chief of PW1 was recorded in absence of the applicant as well as his counsel. Therefore, the order dated 06.11.2019 passed by the Special Judge P.C. Act-VII, Lucknow in Case No.1302 of 2018 arising out of Case Crime No. 240 of 2018, under Sections 7/13(1)(d), r/w 13(2) of P.C. Act is hereby set aside. 15. The trial court is directed to recall PW1 and record his Examination-in-Chief in accordance with the observation mentioned here and above and also proceed strictly, in accordance with law.