DATE: 31.07.2026
COURT: Supreme Court of India
BENCH: Justice J. B. Pardiwala and Justice
K. Vinod Chandran
FACTS:
Two accused were
charged with the murder of a person on 01.04.1999. According to the
prosecution, some witnesses returning from a fair saw the appellant assaulting
the victim by sitting on his chest and strangulating him, while the co-accused
exhorted the assault and threatened the onlookers. The appellant, who was
alleged to have committed the overt act, absconded. The co-accused was tried
and acquitted. The appellant was arrested only on 11.09.2017, more than 18
years later and was put on trial for the same murder.
At the subsequent
trial, the crucial eyewitness (PW1) had died and was unavailable. Other
eyewitnesses turned hostile. One remaining eyewitness (PW2) spoke of having
seen the assault but failed to identify the accused (who was not produced from
custody) and indicated that there were two persons named Mahendra Singh in the
locality. The trial court and the High Court relied on PW1’s earlier testimony
(recorded in the proceedings against the co-accused) to convict the appellant.
No order under Section 299 of the Code of Criminal Procedure, 1973 had been
passed in 1999 either at the stage of committal or at the commencement of the
trial against the co-accused.
ISSUES:
The sole question was
whether evidence recorded in a trial against one accused, after the case
against an absconding co-accused had been split up, could be used against the
absconding accused when he was later arrested and subjected to a fresh trial.
This required a correct interpretation of Section 299 CrPC, particularly
whether both jurisdictional facts (that the accused was absconding and that
there was no immediate prospect of arresting him) had been proved and recorded
by a formal order before the earlier testimony could be admitted in the
subsequent trial without affording the accused an opportunity of
cross-examination.
JUDGEMENT WITH REASONING:
The Supreme Court
allowed the appeal, set aside the conviction, and acquitted the appellant of
the charges framed against him. It directed that he be released if in custody,
or that his bail bonds stand cancelled if already on bail. Pending applications
were also disposed of.
Section 299 CrPC
consists of two distinct parts. The first part requires proof of two
jurisdictional facts that must be established conjunctively (not disjunctively)
before any evidence can be recorded in the absence of an absconding accused: (i)
that the accused has absconded, and (ii) that there is no immediate prospect of
arresting him. Only after a formal order recording satisfaction on both these
facts may the court record the evidence of witnesses in the absence of the
accused. The second part governs the subsequent use of that evidence: it may be
read against the accused in a later trial only if the court further finds that
the witness is dead, incapable of giving evidence, cannot be found, or that his
presence cannot be procured without unreasonable delay, expense or
inconvenience. This provision is an exception to Section 33 of the Indian
Evidence Act, 1872, which ordinarily requires that the adverse party had the
right and opportunity to cross-examine the witness. The exception is founded on
the principle that an accused who deliberately absconds cannot claim the
benefit of his own wrong by frustrating the trial and then insisting on
cross-examination of every witness. Both jurisdictional facts must be proved by
cogent evidence and a clear judicial finding recorded at the time the accused
is absconding, either at the committal stage or at the trial stage not after
his subsequent arrest.
In the present case no
such order under Section 299 was ever passed in 1999 when the co-accused was
tried. Consequently, the earlier testimony of PW1, though recorded in the
absence of the appellant, could not be treated as evidence recorded under
Section 299 and could not be used against the appellant in the later trial.
With PW1 dead, the other eyewitnesses hostile, and PW2’s evidence insufficient
to identify the appellant, the prosecution case collapsed. The conviction
recorded by the trial court and affirmed by the High Court was therefore
unsustainable. The Court reaffirmed the consistent interpretation of Section 299
laid down in Nirmal Singh v. State of Haryana, Jayendra Vishnu Thakur v. State
of Maharashtra and Sukhpal Singh v. NCT of Delhi, emphasising that the
safeguard of a formal order recording both jurisdictional facts is mandatory
and cannot be dispensed with.
ANALYSIS:
This judgment
reinforces the strict and mandatory character of Section 299 of the Code of
Criminal Procedure, 1973, treating it as a carefully circumscribed exception to
the fundamental right of an accused to cross-examine prosecution witnesses
under Section 33 of the Indian Evidence Act, 1872. By insisting that both
jurisdictional facts, abscondence and the absence of any immediate prospect of
arrest must be proved by cogent evidence and recorded in a formal judicial
order at the time the accused is absconding (and not retrospectively after his
arrest), the Court has closed the door on any casual or post-facto invocation
of the provision. The decision thereby protects the integrity of the trial
process: while it prevents an absconding accused from deliberately frustrating
the prosecution, it equally prevents the State from relying on untested earlier
depositions when the statutory preconditions have not been scrupulously
observed. In the present case, the complete absence of any Section 299 order in
1999 rendered PW1’s earlier testimony inadmissible against the appellant, and
with the remaining evidence either hostile or inconclusive on identity, the prosecution’s
case necessarily failed.
The ruling also
carries broader institutional implications. It underscores that courts must
contemporaneously apply their mind to the dual requirements of Section 299
rather than treating the provision as a mere procedural formality that can be
presumed or reconstructed years later. By reaffirming the consistent line of
authority in Nirmal Singh, Jayendra Vishnu Thakur and Sukhpal Singh, the
Supreme Court has signaled that any conviction resting on evidence recorded in
the absence of an absconding accused will be vulnerable unless the record
itself contains a clear finding on both jurisdictional facts. This exacting
standard simultaneously safeguards the accused’s right to a fair trial and
preserves the legitimacy of the criminal justice system by ensuring that the
extraordinary power to dispense with cross-examination is exercised only within
the narrow statutory limits prescribed by Parliament.
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