Section 299 CrPC: Absconding Accused Must Be Shown Unlikely To Be Arrested Immediately, SC Clarifies

The Supreme Court recently emphasised that invocation of Section 299 of the Criminal Procedure Code (CrPC) [now Section 335 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)] requires the court to be satisfied of two jurisdictional facts: that the accused is absconding and that there is no immediate prospect of arresting him. Court said these two facts must be established conjunctively and a formal order must be passed recording a finding on both before evidence recorded in the absence of the accused can be relied upon in a subsequent trial after his apprehension.

Section 299 of the CrPC permits evidence to be recorded in the absence of an accused who is absconding. The provision is intended to ensure that an accused cannot frustrate the prosecution or delay the criminal justice process simply by deliberately remaining away from the proceedings.

A Bench of Justices J B Pardiwala and K Vinod Chandran made the observation while dealing with an appeal filed by Mahendra Singh. Court held that since no order was passed under Section 299 in the earlier trial against the co-accused recording satisfaction about the required jurisdictional facts, the testimony recorded in that trial could not be used against Singh.

Why is Section 299 CrPC important in cases involving absconding accused?

Court noted that Section 299 operates as an exception to Section 33 of the Indian Evidence Act, 1872 [now Section 31 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA)].

Section 33 of the IEA permits the testimony of a witness recorded in an earlier judicial proceeding to be used in a subsequent proceeding in certain circumstances, including when the witness cannot be found or his presence cannot be procured, provided the adverse party had the right and opportunity to cross-examine the witness in the earlier proceeding.

"The right or opportunity to cross-examine a witness deposing against one is an indefeasible right to that person which is non-negotiable," the Bench said.

Referring to its decision in Nirmal Singh Vs State of Haryana (2000), Court said that before recording the statement of witnesses under Section 299, the court must first be satisfied that the accused is absconding and that there is no immediate prospect of his arrest.

The Bench also referred to Sukhpal Singh Vs NCT of Delhi (2024), which explained that invocation of Section 299 depends on establishing these two jurisdictional facts and leads to two consequences, one in the present and the other in the future.

What must the court establish before recording evidence under Section 299 CrPC?

The court must first establish that the accused has absconded and that there is no immediate prospect of his arres, the Supreme Court explained.

Once these facts are proved to the satisfaction of the court, evidence of witnesses can be recorded in the absence of the accused. However, such evidence can be used in a later trial only if the court is satisfied that the witness cannot subsequently be produced because he is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without unreasonable delay, expense or inconvenience.

"The consequence, in praesenti is that the evidence of the witnesses are recorded in the absence of the accused and the consequence, in futuro is that such testimony can be used at a trial after the apprehension of the absconding accused," the Bench said.

Court stressed that a formal order recording satisfaction about both jurisdictional facts is necessary.

What happens when one of several accused absconds?

The Supreme Court explained that where there are multiple accused and one of them absconds, the trial can proceed against the accused who is before the court after the required findings regarding the absconding accused have been recorded.

The testimony of a witness recorded during that trial can subsequently be relied upon in the fresh trial of the absconding accused after his arrest, but only if the court concludes that the witness cannot be found or his presence cannot be procured.

Court said that if there is only one accused and he is absconding, there is no question of committing the case for trial and the Magistrate can record the evidence himself. If the accused absconds after committal, the sessions court has to follow the same procedure and first examine the two jurisdictional aspects before recording the evidence.

The provision, the Bench said, is based on the principle that an accused who deliberately absconds to frustrate investigation and trial cannot later claim the benefit of a wrong committed by him.

"It is founded on the principle that no man can claim the benefit of a wrong committed by himself," Court said.

Why did the Supreme Court ordered acquittal?

The case arose from the murder of a person on April 1, 1999. Two accused were arrayed in the case.

According to the prosecution, some witnesses were returning after attending a fair when they saw the appellant assaulting the victim, sitting on his chest and strangulating him. The other accused was allegedly exhorting the assault and threatening passersby. Frightened by the threats, the witnesses left the scene.

Mahendra Singh, who was alleged to have committed the overt act, absconded. The other accused was tried separately and was acquitted.

Singh was arrested on September 11, 2017 and subsequently faced trial for the murder.

By then, more than a decade and a half had passed. The crucial witness, PW1, had died and other eyewitnesses had turned hostile. The cross-examination of the witnesses also indicated that there were two persons named Mahendra Singh in the village where the crime had taken place.

The Supreme Court therefore held that identification was critical and that the eyewitness testimony could not, by itself, inculpate the appellant.

The trial court and the high court had relied upon the testimony of PW1 recorded during the earlier trial, in which he had clearly narrated that the first accused had committed the murder.

However, the Supreme Court noted that no order under Section 299 had been passed in 1999 when the matter was brought before the court, either at the stage of committal or when the trial commenced.

"The flight of the accused, the appellant herein, and the impossibility of apprehending him immediately had to be urged before that court and it has to be proved to the satisfaction of that court," the Bench said.

It added that only an order recording proof of both jurisdictional facts would permit testimony recorded at that stage to be relied upon at a later stage when the presence of the witness cannot be procured.

Since no such order had been passed in the earlier trial against the second accused, the Supreme Court held that the prosecution had failed to establish its case against Singh.

Court accordingly acquitted Mahendra Singh of the charges and directed that he be released if he was in custody.

Case Title: Mahendra Singh Vs State of Chhattisgarh

Bench: Justices J B Pardiwala and K Vinod Chandran

Date of Judgment: July 31, 2026