IMPORTANT POINTS
(1) Evidence against absconding accused – When there are more than one accused and one of them absconds, then, after finding proof of jurisdictional facts; of flight and impossibility of immediate arrest, trial could be proceeded against accused brought before Court and concluded.
(2) Accused who deliberately goes undercover, attempting to frustrate investigation and trial, cannot claim right of cross examining every witness, as provided under Section 33 of Evidence Act.

JUDGMENT :

K. VINOD CHANDRAN, J.

Leave granted.

2. Whether the evidence recorded in a trial against one of the accused; the case against the absconding accused having been split up, can be used against that accused when he is arrested later and a fresh trial is conducted, is the question arising, which can be answered on a correct interpretation of Section 299 of the Code of Criminal Procedure, 1973 (Cr. PC).

3. The issue is no longer res integra, this Court having interpreted Section 299, Cr.PC in a number of decisions. First, we refer to the decision in Nirmal Singh v. State of Haryana, (2000) 4 SCC 41 wherein one of the accused died and two others were declared as proclaimed offenders. The Special Judicial Magistrate recorded the statement of twenty-seven witnesses under Section 299, Cr.PC. The absconding accused were apprehended later and subjected to trial, wherein the evidence recorded of five of the twenty-seven witnesses under Section 299 was relied upon to convict the accused. The High Court having upheld the conviction and sentence, the case travelled up to this Court. This Court found that Section 299 has two parts, one, the circumstances under which evidence of witnesses can be recorded in the absence of the accused and the second part, the circumstances in which the said evidence can be used in the subsequent trial without affording an opportunity to the accused to cross-examine. Hence, prior to recording of the statement of witnesses under Section 299, the Court must be satisfied that the accused is absconding and there is no immediate prospect of arresting him. This procedure under Section 299 was held to be an exception to Section 33 of the Indian Evidence Act, 1872. Section 33 makes admissible the testimony of a witness examined in a judicial proceeding, relevant as proof of the truth of the facts it states, in a subsequent proceeding, if that witness cannot be found or his presence cannot be procured, provided the adverse party had the right and opportunity to cross examine that witness in the first proceeding. The right or opportunity to cross-examine a witness deposing against one is an indefeasible right to that person which is non-negotiable. Section 299 being an exception, it was held as under: -

“... In other words, before recording the statement of the witnesses produced by the prosecution, the court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under the first part of Section 299(1) of the Code of Criminal Procedure...”

4. In that case the first part was complied with and the argument was of the Sessions Judge having not recorded an order that the second part stood satisfied; ie: the witness is dead, incapable of giving evidence, cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable. Though such an order was absent, the High Court had found on a perusal of the original records that repeatedly summons were issued to the five witnesses which were returned with the report that they were dead and hence the use of their prior testimonies was found justified by this Court.

5. Jayendra Vishnu Thakur v. State of Maharashtra & Another, (2009) 7 SCC 104 dealt with the jurisdictional facts envisaged under Section 299, Cr.PC. The order impugned in that case found eight accused persons to be absconding in a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987. The order passed, while recognizing the right of the absconding accused to cross-examine the witness, if they are alive at the time of the trial, contemplated a situation where the said witness dies or becomes incapable of giving evidence. Noticing the order passed under Section 82 of the Cr.PC, without any further material regarding the abscondence or the impossibility of their apprehension, evidence was directed to be recorded under Section 299. It was noticed by this Court that in fact the abs