Analysis of Section 299 Cr.P.C.

An Exposition of Section 299 of the Code of Criminal Procedure, 1973: Recording Evidence in the Absence of the Accused

Introduction

Section 299 of the Code of Criminal Procedure, 1973 (Cr.P.C.) carves out a significant exception to the general principle of criminal jurisprudence that all evidence must be recorded in the presence of the accused. This provision addresses situations where an accused person absconds or where an offence is committed by unknown persons, thereby threatening the potential loss of crucial evidence over time. The section provides a mechanism for recording depositions of prosecution witnesses in the absence of the accused, which may subsequently be used against the accused under specific circumstances. This article undertakes a comprehensive analysis of Section 299 Cr.P.C., drawing upon statutory provisions and judicial pronouncements from Indian courts, particularly those provided in the reference materials, to elucidate its scope, application, and the procedural safeguards inherent within it.

Statutory Framework of Section 299 Cr.P.C.

Section 299 Cr.P.C., titled "Record of evidence in absence of accused," is structured to address distinct scenarios and lays down conditions for both the recording of evidence and its subsequent admissibility.

Sub-section (1): Recording Evidence in Absentia of an Absconded Accused

The first part of Section 299(1) Cr.P.C. stipulates:

"If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court competent to try or commit for trial, such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions..."
This part empowers the competent court to record evidence if two foundational conditions are met: (i) it must be "proved" that the accused person has absconded, and (ii) there must be "no immediate prospect of arresting him." Both conditions are conjunctive and must be satisfied before the court can proceed to record evidence in the accused's absence (Jayendra Vishnu Thakur v. State of Maharashtra and another, 2009 SCC 7 104; SUKHPAL SINGH v. NCT OF DELHI, 2024).

Sub-section (2): Offences by Unknown Persons

Section 299(2) Cr.P.C. deals with a different situation:

"If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the 1st Class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India."
This sub-section allows for the recording of evidence when the perpetrators of serious offences are unknown and there is no immediate prospect of their arrest (Smt. Urmila Sahu v. State Of Orissa, 1997; Abdul Rob v. State of Assam, 2006).

Admissibility of Depositions Upon Arrest (Sub-section (1) - Second Part)

The latter part of Section 299(1) Cr.P.C. governs the admissibility of depositions recorded under its first part, once the absconded accused is arrested and brought to trial:

"...and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."
Thus, the recorded deposition is not automatically admissible. Its use is contingent upon the unavailability of the deponent under the specified conditions (Central Bureau Of Investigation v. Abu Salem Ansari And Another, 2009; Mohammed Rafi v. Union Of India, 2022).

Judicial Interpretation of Key Prerequisites

Proving "Abscondence" and "No Immediate Prospect of Arrest"

The judiciary has consistently emphasized that the conditions precedent for invoking Section 299(1) Cr.P.C. must be strictly construed and rigorously established. The Supreme Court in Jayendra Vishnu Thakur v. State Of Maharashtra And Another (2009 SCC 7 104) held that "absconding" requires clear evidence of intentional evasion of legal processes. Mere issuance of a proclamation under Section 82 Cr.P.C. is not, by itself, sufficient proof of abscondence if the accused is not genuinely absconding (e.g., if already in custody in another case). The court must record a finding, based on cogent evidence, that the jurisdictional facts – abscondence and no immediate prospect of arrest – exist. This was also highlighted in older cases like Rustom v. Emperor (AIR 1915 All 411), which stated that the court must first record an order that it has been proved the accused has absconded and there is no immediate prospect of his arrest.

The Madhya Pradesh High Court, citing Nirmal Singh Vs. State of Haryana (2000 S.C.C. (Cri.) 470) and Jayendra Vishnu Thakur (2010) 2 S.C.C. (Cri.) 500, reiterated that proceedings under Sections 82 and 83 Cr.P.C. can be utilized to conclude abscondence, and a speaking order is required to initiate Section 299 proceedings, detailing reasons, especially for the jurisdictional facts (NARENDRA SINGH YADAV v. THE STATE OF MADHYA PRADESH, 2023). The Gauhati High Court in Abdul Rob v. State of Assam (2006) also stressed that recording evidence under Section 299(1) is impermissible unless both conditions are proven.

Competent Court to Record Evidence

Section 299(1) Cr.P.C. specifies "the court competent to try or commit for trial" as the authority to record such evidence. The case of Nirmal Singh v. State Of Haryana (1997 SCC ONLINE P&H 883) before the Punjab & Haryana High Court detailed an initial procedural ambiguity where the file was moved between the Ilaqa Magistrate and the Sessions Judge regarding competency. Ultimately, the Sub-Divisional Judicial Magistrate (S.D.J.M.) recorded the evidence. The Orissa High Court in Smt. Urmila Sahu v. State Of Orissa (1997) also refers to the "Court competent to try or commit for trial." This generally implies the Magistrate conducting committal proceedings or the trial court itself.

The Two-Fold Nature of Section 299 Cr.P.C.

Section 299 Cr.P.C. operates in two distinct stages, each with its own set of requirements.

Stage 1: Recording of Depositions

This initial stage is governed by the first part of Section 299(1) (or Section 299(2) for unknown offenders). The primary focus is on the status of the accused (absconding, no immediate prospect of arrest, or unknown). The objective is the preservation of evidence that might otherwise be lost.

Stage 2: Utilisation of Recorded Depositions

This stage arises only after the absconded accused is arrested and faces inquiry or trial. The admissibility of the previously recorded depositions is then governed by the second part of Section 299(1) (or the latter part of Section 299(2)). The crucial factor here is the availability of the deponent. As held in Smt. Urmila Sahu v. State Of Orissa (1997), if, after the apprehension of the accused, such witnesses are available and capable of giving evidence, then the evidence recorded under Section 299 Cr.P.C. cannot be utilised as substantive evidence; the witnesses must be examined afresh in the presence of the accused. This underscores the provision's nature as a measure of last resort for evidence admission. The Supreme Court in SUKHPAL SINGH v. NCT OF DELHI (2024), referencing Nirmal Singh v. State Of Haryana (2000 SCC (Cri) 470), noted that Section 299 Cr.P.C. is an exception to the principle in Section 33 of the Indian Evidence Act, 1872, concerning the admissibility of evidence given in a prior judicial proceeding when the witness is unavailable.

Scope, Object, and Procedural Safeguards

Exception to General Rules of Evidence

The Kerala High Court in Mohammed Rafi v. Union Of India (2022) and SAJIL v. UNION OF INDIA (2022), citing Tahsildar Singh v. State (AIR 1958 All 214), explained the scope and object of Section 299 Cr.P.C. (corresponding to Section 512 of the old Code). It "engrafts an exception on the general rule that all evidence against an accused should be tendered before the Court in his presence." The rationale is the desirability of preserving the best evidence, especially when an accused, by his own conduct of absconding, chooses to be absent.

Rights of the Accused

While Section 299 Cr.P.C. serves the interests of justice by preserving evidence, it must be balanced against the fundamental rights of the accused, particularly the right to confront and cross-examine witnesses (Jayendra Vishnu Thakur v. State Of Maharashtra And Another, 2009 SCC 7 104). The stringent conditions for both recording and subsequent use of depositions under Section 299 Cr.P.C. act as safeguards. The provision that evidence recorded under Section 299 Cr.P.C. cannot be used if the witness is available at trial is a critical protection for the accused.

Distinction from Trial in Absentia

It is important to note that Section 299 Cr.P.C. provides for the recording of evidence in the absence of the accused, not a full trial in absentia. The Calcutta High Court in Kader Khan v. State Of West Bengal (2022) discussed the concept of trial in absentia in other jurisdictions and noted that despite observations by the Apex Court in Hussain v. Union of India (2017) 5 SCC 702), no amendment has been made to Section 299(1) Cr.P.C. to provide for a complete trial in absentia of an absconder in India. The court proposed amendments to incorporate such provisions.

Application and Implications in Practice

Charge Sheets under Section 299 Cr.P.C.

In practice, when an accused person remains absconding during the investigation and there is no immediate prospect of arrest, investigating agencies often file charge sheets citing Section 299 Cr.P.C. against such accused. This allows the judicial process to commence with the recording of evidence, as seen in cases like Mooli Devi v. State Of Rajasthan & Anr. (2014 SCC ONLINE RAJ 4935), SUNIL GOUR v. THE STATE OF MADHYA PRADESH (2022), and NARENDRA SINGH YADAV v. THE STATE OF MADHYA PRADESH (2023).

Interaction with Other Procedural Aspects

  • Section 319 Cr.P.C. (Power to proceed against other persons appearing to be guilty of offence): The Punjab & Haryana High Court in MEHAKPREET SAHI v. STATE OF PUNJAB (2017), relying on Davinder Kaur v. State of Punjab (2002(2) RCR (Criminal) 378), held that proceedings under Section 299 Cr.P.C., though judicial, are not an "enquiry" or "trial" for the purpose of invoking Section 319 Cr.P.C. based on statements recorded thereunder. Such statements are not considered "evidence" as per Section 3 of the Evidence Act at that stage for summoning additional accused.
  • Section 8 of the Indian Evidence Act, 1872 (Motive, preparation and previous or subsequent conduct): The conduct of an accused in absconding is a relevant fact under Section 8 of the Evidence Act and can be used as a circumstance against them, as noted in GAJENDRA KISHAN DHAGE AND ANOTHER v. THE STATE OF MAHARASHTRA (2018).
  • Duty of Magistrate if New Address of Absconder is Found: The Uttarakhand High Court in Randhir Singh v. State Of Uttarakhand (2011 SCC ONLINE UTT 2035) held that if a new address of an absconding accused is provided to the court, the Magistrate should issue processes to that address. Merely because the case is fixed for recording evidence under Section 299 Cr.P.C. does not mean efforts to secure the accused's presence should cease if new information becomes available. The ultimate object is to administer justice, which includes trying the accused in person if feasible.
  • No Deletion of Accused's Name: The Orissa High Court in Smt. Urmila Sahu v. State Of Orissa (1997), agreeing with State of Hyderabad v. Bhimaraya (AIR 1953 Hyd 63), affirmed that Section 299 Cr.P.C. (or old Section 512) does not authorize a Magistrate to delete the name of an absconding accused from the case based on the evidence recorded under this provision.

Conclusion

Section 299 of the Code of Criminal Procedure, 1973, serves a vital function in the administration of criminal justice by enabling the preservation of evidence that might be lost due to the abscondence of an accused or the unknown identity of perpetrators. However, its application is circumscribed by stringent conditions and procedural safeguards designed to protect the rights of the accused. The judiciary has consistently mandated a strict interpretation of its prerequisites, emphasizing that the foundational facts of abscondence and the lack of immediate prospect of arrest must be cogently proven. Furthermore, the conditional admissibility of depositions recorded under this section, particularly the requirement to examine witnesses afresh if they are available at trial, ensures that Section 299 Cr.P.C. remains an exception rather than the rule. It strikes a delicate balance between the societal interest in prosecuting crime and the individual's right to a fair trial, ensuring that justice is not unduly hampered by the deliberate evasion of legal processes while upholding fundamental procedural fairness.