Evidence Against Absconder Invalid Without Prior S.299 CrPC Order: SC Acquits Murder Accused

"Only an order passed, finding proof of both the jurisdictional facts would enable testimony of the witness recorded at that stage to be relied on at a later stage; when the presence of that witness cannot be procured." Supreme Court of India, in a significant ruling dated July 31, 2026, underscored the imperative for strict adherence to the procedural safeguards under Section 299 of the Code of Criminal Procedure, 1973 (Cr.PC) when recording evidence against an absconding accused.

A bench comprising Justices J. B. Pardiwala and K. Vinod Chandran, while acquitting an accused in a 1999 murder case, held that evidence recorded in an earlier trial against a co-accused cannot be used against a later-apprehended absconder if no specific order under Section 299 Cr.PC was passed at the time of recording such evidence.

The case involved an appeal against the conviction of Mahendra Singh for a murder committed on April 1, 1999. The prosecution alleged that the appellant was seen assaulting the victim while a co-accused exhorted the assault. The appellant absconded for over 18 years, during which the co-accused was tried and acquitted. Upon the appellant's arrest on September 11, 2017, he was subjected to a fresh trial.

The primary question before the court was whether evidence recorded in an earlier trial against a co-accused could be used against the subsequently arrested absconding accused, especially when the crucial witness had expired and no order under Section 299 Cr.PC was passed at the appropriate stage.

Court's Observations and Judgment

The Supreme Court meticulously examined the scope and application of Section 299 Cr.PC, which deals with the recording of evidence in the absence of an accused. The Court noted that Section 299 Cr.PC comprises two distinct parts. The first part outlines the circumstances under which evidence can be recorded in the absence of the accused, requiring satisfaction that the accused is absconding and there is no immediate prospect of arresting them. The second part specifies when such recorded evidence can be used in a subsequent trial, namely if the witness is dead, incapable of giving evidence, or cannot be found without unreasonable delay or expense.

Strict Interpretation of Section 299 CrPC Conditions

Referring to its decision in Nirmal Singh v. State of Haryana (2000), the Court reiterated that the procedure under Section 299 Cr.PC serves as an exception to Section 33 of the Indian Evidence Act, 1872. Section 33 generally allows admissible testimony from a previous judicial proceeding only if the adverse party had the right and opportunity to cross-examine the witness.

Conjunctive Proof of Jurisdictional Facts is Mandatory

The bench emphasized the pronouncements in Jayendra Vishnu Thakur v. State of Maharashtra & Another (2009), stating that both conditions under the first part of Section 299 Cr.PC must be read conjunctively, not disjunctively. The Court in Jayendra Vishnu Thakur had explicitly held: "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." This means the prosecution must lead cogent evidence to prove not only that the accused has absconded but also that there is no immediate prospect of arresting him.

Rationale: Preventing Accused from Frustrating Justice

The Court further clarified that the intention behind Section 299 Cr.PC is to prevent an accused from frustrating the criminal justice delivery system by deliberately absconding. While an absconding accused may lose the valuable right of cross-examination due to their own actions, the procedural requirements for invoking Section 299 must still be rigorously met. The Court observed, "The very intention of the provision is to ensure that, by deliberately taking flight, the accused does not frustrate the prosecution and thus puts in jeopardy the very criminal justice delivery system. It is also founded on the principle that an accused who deliberately goes undercover, attempting to frustrate the investigation and the trial, cannot claim the right of cross examining every witness, as provided under Section 33 which though a valuable right available to the accused, would not be available, if by his own actions, the accused remains absconding. It is founded on the principle that no man can claim the benefit of a wrong committed by himself."

Formal Order Under Section 299 CrPC is Critical

Crucially, the Court asserted that a formal order under Section 299 Cr.PC, conclusively finding proof of both jurisdictional facts (flight and impossibility of immediate arrest), must be passed at the first stage – either at the committal stage or at the trial stage when the accused is found absconding. This order is a prerequisite for the testimony of witnesses recorded in the absence of the accused to be relied upon in a later trial, once the absconder is apprehended and the witness cannot be produced.

Absence of Section 299 Order Vitiates Evidence in Present Case

Applying these principles to the appellant's case, the Supreme Court noted that despite the appellant's abscondence, "there was no order passed under Section 299 in the year 1999 when the matter was brought before Court, either at the time of committal or at the time of commencement of trial." Without such an order, the testimony of PW1 (the crucial witness who had since expired) from the earlier proceedings could not be legitimately relied upon by the trial court and the High Court to convict Mahendra Singh. The Court also observed that other eyewitnesses had turned hostile or failed to identify the accused.

The Court held that the prosecution had failed to establish the jurisdictional facts required for invocation of Section 299 Cr.PC at the appropriate time, thereby rendering the reliance on PW1's earlier testimony invalid. Consequently, the prosecution's case against the appellant failed.

The Supreme Court allowed the appeal and acquitted Mahendra Singh of all charges. The appellant was ordered to be released if in custody, or his bail bonds cancelled if already released on bail.

This judgment reiterates the Supreme Court's commitment to upholding procedural fairness in criminal trials, even against absconding accused persons. It clarifies that the extraordinary power under Section 299 Cr.PC to record evidence in the absence of an accused and use it subsequently, is contingent upon strict and formal compliance with its twin jurisdictional prerequisites. The absence of such a foundational order undermines the admissibility of prior testimony, regardless of the accused's actions.

Date of Decision: July 31, 2026