Case at a Glance
A man accused of a 1999 murder absconded, was arrested only in 2017, and was convicted largely on the testimony a key eyewitness had given in 1999 at the co-accused’s trial — a witness who had since died. The Supreme Court held that such earlier testimony can be used against a later-arrested accused only if the court, at the original stage, had passed an order under Section 299 of the Code of Criminal Procedure, 1973 recording proof that the accused was absconding and that there was no immediate prospect of arresting him. Since no such order was ever passed, the prosecution case collapsed and the appellant was acquitted.
The case concerned a murder committed on 01.04.1999. According to the prosecution, several witnesses returning from a fair saw the appellant assaulting the victim, sitting on his chest and strangulating him, while the co-accused exhorted him and threatened passersby. The appellant absconded. The co-accused was tried alone and was acquitted.
The appellant was arrested on 11.09.2017 and put on trial more than fifteen years after the incident. By then the crucial eyewitness, PW1, had died; other eyewitnesses turned hostile; and PW2, though he spoke of the assault, did not identify the accused — his cross-examination showed that two men named Mahendra Singh lived in the village. The trial court and the High Court nonetheless convicted the appellant by relying on the testimony PW1 had given in 1999, when the appellant was not in custody. No order under Section 299 CrPC had been passed in 1999.
The Key Question Before the Court
Can evidence recorded at the trial of a co-accused, while the appellant was absconding, be read against the appellant in his later trial when no order under Section 299 CrPC was passed at that time?
Why Section 299 CrPC Requires a Prior, Reasoned Order
The Bench, in a judgment authored by Justice K. Vinod Chandran, traced the law through Nirmal Singh v. State of Haryana, (2000) 03 SC CK 0179, (2000) 4 SCC 41, Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 04 SC CK 0068, (2009) 7 SCC 104, and Sukhpal Singh v. NCT of Delhi, (2024) 05 SC CK 0007, 2024 SCC OnLine SC 800. Section 299 is an exception to Section 33 of the Indian Evidence Act, 1872 and to the accused’s right to cross-examine. It applies only when two jurisdictional facts are proved — that the accused has absconded and that there is no immediate prospect of arresting him — and, following Jayendra Vishnu Thakur, these conditions “must be read conjunctively and not disjunctively”.
The Court explained that the provision prevents a fugitive from defeating the prosecution, on the principle that “no man can claim the benefit of a wrong committed by himself”. But the safeguard is the order itself: it has to be passed at the first stage — at committal or at the start of trial — when the accused is found absconding, not after he is arrested. “The order under Section 299 has to conclusively find proof of both the jurisdictional facts.” Since no such order was passed in 1999, PW1’s earlier testimony could not be used. With PW1 dead, other witnesses hostile and identity in doubt, nothing remained to sustain the conviction.
What the Court Actually Held
- Section 299 CrPC permits use of evidence recorded in an accused’s absence only when both jurisdictional facts — abscondence and no immediate prospect of arrest — are proved and recorded in an order.
- The order must be passed at the initial stage (committal or trial) when the accused is found absconding; it cannot be supplied after his arrest.
- In the absence of a Section 299 order passed in 1999, PW1’s earlier testimony could not be relied on against the appellant.
- The prosecution failed; the appellant was acquitted and directed to be released if in custody, with bail bonds cancelled if on bail.
Why This Judgment Matters
- Split trials involving absconders are common; this ruling makes the Section 299 order a non-negotiable precondition for using earlier testimony.
- It protects the accused’s right to cross-examine, described in the precedents reviewed by the Court as an indefeasible right.
- Prosecutors and trial courts are put on notice to record proper findings at the time evidence is taken, or risk losing it years later.
What Should Advocates Take Away From the Judgment?
For the Accused
- If you were tried after absconding, check whether the trial court passed a Section 299 order before witnesses were examined in your absence.
- Without that order, earlier testimony of dead or untraceable witnesses cannot be read against you.
For Counsel
- Call for the record of the co-accused’s trial and look for a reasoned order recording both jurisdictional facts.
- Rely on Jayendra Vishnu Thakur and this ruling to argue that the two conditions are conjunctive and must be proved, not presumed.
- Prosecutors should seek a Section 299 order at committal or at the start of trial whenever an accused is absconding.
Key Takeaways
- Section 299 CrPC is an exception to the right of cross-examination and must be strictly complied with.
- Both abscondence and no immediate prospect of arrest must be proved and recorded.
- The order must precede the recording of evidence; it cannot be passed retrospectively after arrest.
- Without it, earlier testimony is inadmissible and convictions resting on it cannot stand.
Frequently Asked Questions
What does Section 299 CrPC allow?
It allows a court, when an accused has absconded and there is no immediate prospect of arresting him, to examine prosecution witnesses in his absence and later use that deposition against him if the witness is dead or cannot be produced.
Why was the conviction set aside here?
No Section 299 order was passed in 1999 when the eyewitness deposed at the co-accused’s trial. Without that order, his testimony could not be used against the appellant, and the remaining evidence did not establish guilt.
Is it enough that the accused was in fact absconding?
No. The Court held that the jurisdictional facts must be urged, proved and recorded by the court in an order at the relevant stage.
Conclusion
The ruling in Mahendra Singh v. State of Chhattisgarh reinforces that procedural safeguards in criminal trials are substantive protections. A fugitive cannot profit from his flight, but the State too cannot use untested evidence against him unless the court followed Section 299 at the right time.
Practical takeaway: In any trial of a long-absconding accused, the first document to look for is the Section 299 CrPC order; if it is missing, earlier depositions cannot be read against him.
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