Evidence recorded in the trial against a co-accused cannot be used against an absconding accused unless the prosecution seeks permission to simultaneously tender evidence against the absconding accused and the trial Court records or passes an order for recording that evidence in accordance with Section 299, Cr.P.C.

P. K. TRIPATHY, J.

( 1 ) HEARD learned counsel for the petitioner and the learned Addl. Standing Counsel for the State.

( 2 ) THE facts in brief involved in this case are that G. R. Case No. 214 of 1989 corresponding to O. 258/97. Digapahandi P. S. Case No. 77 of 1989 was registered against the petitioner and the co-accused for the offences under Sections 498-A/34, I. P. C. read with Section 4 of the Dowry Prohibition Act. Charge-sheet was filed on 30-6-1991 showing the petitioner as an absconder. it is not disputed at the Bar that the attendance of the petitioner could not be secured. Thus, the G. R. Case was spilitted and G. R. Case No. 214/a of 1989 against the petitioner was sent to the dormant file. So far as the co-accused is concerned, the trial of G. R. Case No. 214/89 is presently pending at the stage of hearing argument.

( 3 ) LEARNED counsel for the petitioner states that the petitioner was not aware of the pendency of the case and she was wrongly shown as an absconder. He further states that in G. R. Case No. 214/89 since last about one year argument has not been heard because of non-posting of a Magistrate. He argues that from the evidence available in G. R. Case No. 214/89 there is no material evidence to support the allegation against the petitioner regarding demand of dowry and tort and, therefore, the proceeding against her be quashed or dropped. He contends that, alternatively, a date may be fixed when the petitioner shall surrender before the lower Court and the lower Court may be directed to call for the case record of G. R. Case No. 214/a of 1989, so that on account of non-availability of the case record hearing of the petitioner's bail petition need not be deffered. Learned Addl. Standing Counsel while strongly objecting to the aforesaid argument to quash the proceeding against the petitioner has, however, no objection to the alternative prayer made by the petitioner.

( 4 ) CONTENTION of the petitioner that she was not aware of the pendency of the case is of no relevance in this case. At proper stage, that contention, if raised, may be appropriately considered by the trying Magistrate.

( 5 ) PETITIONER's contention to peruse the evidence in G. R. Case No. 214 of 1989 recorded in the trial against the co-accused i. e. the petitioner's son and to quash or drop the criminal proceeding against her for absence of clinching evidence against her, is devoid of merit for the reasons stated hereinafter. Section 299, of the Code of Criminal Procedure, 1974 (for short'cr. P. C. ') which corresponds to S. 512 of the Code of Criminal Procedure, 1898 (for short 'the old Code') with no material change in the object, prescribed the procedure for recording of evidence in absence of the accused i. e. absconding accused. In that connection, not only the statutory provision is absolutely clear and unambiguous, but also it has been consistently held that at the time of trial of the co-accused if the prosecution does not seek for permission to simultaneously tender evidence against the absconding accused and if the trial Court does not record and/or pass order for recording that evidence in accordance with provision under Section 512 of the Old Code which corresponds to Section 299, Cr. P. C. , then in such a case, the evidence recorded in the trial against the co-accused cannot be used against the absconding accused when he faces the trial. (See AIR 1926 All 340 : (1926 (27) Cri LJ 874) in the case of Sheoraj Singh v. Emperor and AIR 1938 Pat 49 : (1938 (39) Cri LJ 281) in the case of Emperor v. Baharuddin ). That being the settled legal position in this case it is not permissible to consider such evidence by this Court either to quash or drop the proceeding in exercise of power under Section 482, Cr. P. C.

( 6 ) SECTION 299, Cr. P. C. (Section 512 of the old Code) has a limited application inasmuch as if it is proved that an accused person has absconded and there is no immediate prospect of arresting him or that it appea