IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22437 of 2008 SURENDRA NATH TIWARI @ LALLAN TIWARY SON OF LATE VASUDEO TIWARI, RESIDENT OF TIWARI CHAPRA, P.S. KATEYA, DISTT. GOPALGANJ. ------ PETITIONER. Versus THE STATE OF BIHAR ----OPPOSITE PARTY. ----------- For the petitioner : Sri K.N. Choubey, Senior Adv. Sri Ambuj Nayan Choubey, Adv. Sri Kaushal Kishore Mishra, Adv. Sri Siddharth Harsh, Adv. Sri Prabhat Bhardwaj, Adv. Miss Ritu Priyadarshini, Adv. For the State : Mr. Parmeshwar Mehta, A.P.P. 2. 25.4.2011 Heard. The petitioner is aggrieved with the order dated 12.3.2008 passed by Fast Track Court -3, Gopalganj, in Sessions Trial No. 58 of 2001 by which it has refused to recall of PW-1 for further cross-examination. The background facts are that on 3.5.2000 a case under Section 302 of the Indian Penal Code and 27 of the Arms Act was instituted against the petitioner which case was committed to the court of Sessions on 27.2.2001 and charges were framed on 24.7.2001. It appears that PW-1 was examined and cross-examined on 26.7.2001. On the said date the petitioner was represented through a Lawyer and the witness was cross-examined at length by the said lawyer. The Hajat constable has reported on that day that the petitioner was not willing to come to the court even though he was present in the Hajat. On 16.12.2006, an application was filed on behalf of the petitioner that PW-1 be recalled for further cross-examination. 2 The learned counsel for the petitioner has submitted that since it is a serious case of murder, evidence of PW-2 should have been recorded in his presence which is the mandate of Section 273 of the Code of Criminal Procedure. The further submission is that the lawyer who was representing the petitioner was for a limited purpose of praying for release of certain articles which had been seized by the Investigating Agency. Section 273 Code of Criminal Procedure is as follows: “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. Explanation. – In this section “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.” On a close examination of it one finds that there are exceptions when evidence may be taken even in the absence of the accused. The first exception is when the personal attendance is dispensed with and the second is when he is represented by a Pleader. Admittedly, in the present case the petitioner was represented through his Pleader and, the evidence was recorded in his absence, but in presence of his Pleader and therefore there has been no violation of Section 273 Cr. P.C. Under the circumstances, I find no merit in the application, the same is dismissed. The Trial Court is directed to expedite the trial and 3 conclude it positively within a period of six months if it has not done so or ready since the trial is of the year 2001. S.Ali ( Anjana Prakash, J.)