I.A. ANSARI, J.

The order under challenge, in the present revision, was passed, on 28.7.2003, by the learned Sessions Judge, Morigaon, in Sessions Case No. 95/2002, whereby the learned Sessions Judge held to the effect that to the facts and circumstances of the Sessions Case, in question, the provisions of section 299 cr.pc were applicable. With the conclusion, so reached, the learned Sessions Judge has allowed the prosecution to tender the evidence, which was, in the absence of the accused-petitioner, recorded in the trial of the co-accused.

2. I have heard Mr. M U. Mahmud, learned counsel for the accused-petitioner, and Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam.

3. Before discussing the legality, correctness or propriety of the order, dated 28.7.2003, aforementioned, some material facts and various stages, which have led to the passing of the impugned order, may be noticed as follows:

A written Ejahar was filed at Jagiroad Police Station, on 22.10.90, by the complainant (hereinafter referred to as 'S') alleging, inter alia, that on the previous night i.e., on 21.10.99, accused Jamaluddin, Abdul Rob and Boka @ Ajit Roy had forcibly entered into the house of the complainant and committed gang rape on her. Based on this Ejahar and treating the same as the FIR, Jagiroad Police Station case No. 125/ 91 under Section 376/34 IPC was registered against the three persons, who were named as accused by the informant. During the course of investigation of the case, while accused Jamaluddin and accused Boka were arrested and produced before the Chief Judicial Magistrate, Morigaon, the remaining accused, namely, accused Abdul Rob (i.e., the present petitioner) was not arrested. On completion of the investigation, police submitted charge-sheet, on 23.6.94, showing the present accused-petitioner as absconder. The Chief Judicial Magistrate, Morigaon, then, issued warrant of arrest and also warrant of Proclamation and Attachment against the accused-petitioner; but the same could not be executed, whereupon the police officer, who was responsible for execution of the warrant of arrest and also the warrant of Proclamation and Attachment, was examined by the Chief Judicial Magistrate on 15.3.1995. On being satisfied that the accused-petitioner had absconded and he could not be apprehended, the Chief Judicial Magistrate passed an order, on 15.3.95, declaring the accused as an absconder. However, on appearance of accused Jamaluddin, the case was committed to the Court of Sessions for trial. The Sessions Case No. 42/99 came to be accordingly registered for trial. 4. By the order, dated 26.2.96, passed, in Sessions Case No. 42/95, the learned Sessions Judge, having held accused Abdul Rob and Boka Roy (since deceased) as absconders, decided to proceed with the trial of accused Jamaluddin. A charge against accused Jamaluddin was accordingly framed under Section 376 IPC. To the charge, so framed, accused Jamaluddin pleaded not guilty. The trial, therefore, proceeded and culminated in the judgment and order, dated 23.7.97, whereby the learned Sessions Judge, having held accused Jamaluddin guilty of the offence charged with under Section 376 IPC, convicted him accordingly and sentenced him to undergo rigorous imprisonment for five years with fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of two months. Aggrieved by his conviction and the sentence passed against him, accused Jamaluddin preferred an appeal, which came to be registered as Criminal Appeal No. 120A/98. By judgment and order, dated 22.7.97, passed, in Criminal Appeal No. 120A/98, by this High Court, the appeal was dismissed. Thereafter, the present accused-petitioner was apprehended and produced before the Chief Judicial Magistrate Morigaon.

5. In course of time, the accused-petitioner was committed to the Court of Sessions for trial. Based on this order of committal, Sessions Case No. 95/2002 was registered. On 24.1.2003, charges under section 457 and 376 (g) of the ipc were framed against the present accused-petitioner. To the charges, so framed, the accused-petitioner pleaded not guilty and the trial proceeded. The learned trial Court, on 13.4.2003, examined one witness for prosecution, namely, Durjodhan Biswas and discharged him on the defence declining to cross-examine him. When the case came up before the learned trial Court on 3.5.2003, it surfaced that the informant, who was the victim, had died. Thereafter, a petition was filed by the learned Public Prosecutor to apply the provisions of section 299 cr.pc to the trial of the present the learned Sessions Judge passed an order, on 28.7.2003, permitting the prosecution to produce the evidence recorded in the earlier trial. This order, dated 28.7.2003, came to be impugned, in revision, by the petitioner.

6. As the revision was not admitted and no order of stay was passed, the learned trial Court proceeded with the trial and examined yet another witness on 22.9.2003 and brought on record the evidence already recorded in the trial of accused Jamaluddin. Thereafter, as the case of the prosecution stood closed on 22.9.2003, the learned trial Court fixed 28.10.2003 for examining the accused-petitioner under Section 313 Cr.PC and it accordingly recorded the statement of the accused on 28.10.2003.

7. It is in the backdrop of the above facts that the present revision needs to be considered.

8. While considering the present revision, what needs to be noted is that the order, dated 15.3.95, aforementioned, whereby the accused-petitioner was declared absconder by the Chief Judicial Magistrate, Morigaon, has never been challenged by the accused-petitioner. This apart, even the order, dated 26.2.96, whereby the learned Sessions Judge decided to proceed with the trial of accused Jamaluddin by declaring the present achad been recorded at the trial of accused

9. Since it is the application of Section 299 Cr.PC which is under challenge in the present revision, it is apposite to take note of the provisions of section 299, which it may be noted, reads as follows :

Section 299 : Record of evidence in absence of accused-(1) If it is proved that an accused person has absconded and that there is no immediate prospects of arresting him, the Court coherent 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 and any such depositions 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.

(2) 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 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.

10. From a careful reading of sub-section (1) of section 299 cr.pc, what becomes transparent is that in the absence of an accused, the recording of evidence of witnesses produced on behalf of the prosecution is not possible unless it is proved that the accused has absconded and there is no immediate prospect of his being arrested. Thus, the decision to proceed in the absence of an accused and record evidence of the witnesses produced by the prosecution has to be taken before any witness is examined in the absence of the accused concerned. Section 299 Cr.PC is an exception to the general principle, embodied in section 33 of the evidence act, that the evidence of a witness, where a party had no right or opportunity to cross-examine is not admissible against such a party. Before the rigour of Section 299 Cr.PC are applied and/or availed of, the conditions precedent prescribed for taking resort to Section 299 Cr.PC must be satisfied.

11. In the case at hand, it was on 26.2.96 that the learned Sessions Judge had decided to proceed, in the absence of the present accused-petitioner, with the trial of the co-accused, namely, Jamaluddin. The decision taken by the learned Sessions Judge, on 22.6.96, to proceed with the trial, in the absence of the accused, has remained unchallenged and is, in fact, not under challenge even in the present revision.

12. In the face of the facts, noticed above, it cannot be held that recording of the evidence of the prosecution witnesses in the absence of the present accused petitioner was not in accordance with law and/ or incorrect or improper. This apart, what can also be not ignored is that the trial of accused Jamaluddin commenced with the framing of the charge on 26.2.96 and culminated into his conviction by judgment and order, dated 23.07.97. The present accused-petitioner was arrested on 17.4.2001 and, then, produced before the Chief Judicial Magistrate, Morigaon. After his arrest, the accused-petitioner has made several petitions seeking to be enlarged on bail. One of the primary conditions before an accused can be released on bail is that the court has to be reasonably assured that the presence of the accused would be available for his trial. It is, therefore, clear that had the present accused-petitioner not absconded, nothing stopped from bringing to the notice of the court, when he was produced on being arrested, that he had not been an absconder and/or that he was unaware of the case pending against him. What can also not be ignored is that the FIR mentions the name of the present accused-petitioner as one of the persons, who had allegedly committed rape on the prosecutrix indicating thereby that irrespective of the fact as to whether the accused-petitioner is or is not guilty, he was, according to the prosecutrix, known to the prosecutor As a matter of fact, even the accused-1 petitioner, while seeking bail, did not dispute the fact that he was not known to .the prosecutrix he also did not assert that he was unaware of the existence of the case lodged against him nor did he assert that he had not absconded.

13. In the circumstances, as indicated hereinabove, it is clear that the learned trial Court had sufficient reasons to proceed in the absence of the accused-petitioner and the evidence recorded in his absence can be made use of under Section 299 Cr.PC, if the witness, whose evidence is sought to be given, is dead or incapable of giving evidence or cannot be found on his presence cannot be procured without any amount of delay, expenses or inconvenience, which under the circumstance of a given case, the court considers as unreasonable. In the case at hand, 1 have already indicated that the examination of the witnesses produced by the prosecution and recording of their depositions in terms of the order, dated 26.2.1996, at the trial of co-accused Jamaluddin, do not suffer from any infirmity of law nor is the same, in fact, under challenge in the present revision. When the order, dated 26.2.1996, remains unchallenged, the effect is that the conditions precedent for recording, in the absence of the accused-petitioner, the depositions of the witnesses produced by the prosecution did stand satisfied. To put it differently, the recording of the depositions, in the absence of the present accused-petitioner, in the trial of the co-accused Jamaluddin, was perfectly legal. The only question, therefore, which arises for consideration is as to whether the evidence, so recorded at the trial of accused Jamaluddin, could have been introduced, and relied upon, as the evidence in the trial of the present accused-petitioner?

14. While considering the above aspect of the matter, what is pertinent to note is that ordinarily, evidence is recorded, in a criminal trial, in the presence of the accused. When an accused absconds and the court is satisfied that there is no immediate prospect of the accused being arrested, the court, which is competent to try such an accused, may, in his absence, examine the witnesses produced on behalf of the prosecution. Thus, recording of evidence in the absence of an accused, as envisaged under Section 299 CrPC, is an exception to the general rule that evidence in criminal trial, shall be recorded in the presence of the accused concerned, when an accused absconds, the law permits recording of the evidence even in the absence of the accused in respect of the accusation, which is levelled against the accused. When the accused absconds, he cannot escape from the legal consequences, which ensue his abscondance. That is the momentous effect, which Section 299 Cr.PC has on the subsequent stage of the trial and the accused, who absconds, has to bear.

15. The object of Section 299 Cr.PC is to enable the court to use the evidence given against an accused in his absence 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, in the considered view of the court, unreasonable.

16. In the case at hand, it may be pointed out that PW1, who has been examined, in the present trial, on 30.4.2003, was already examined at the previous trial. As the in-formant/prosecutrix died, there was no impediment, on the part of the learned trial Court, to allow the evidence of the prosecutrix, recorded in the previous trial, to be introduced as evidence in the trial of the present accused-petitioner. The other two witnesses, whose evidence prosecution sought to introduce, is the evidence of the Doctor and the Investigating Officer. The evidence of these two witnesses has already been brought on record. At the time of hearing of this revision, nothing could be pointed out, on behalf of the accused-petitioner, to show as to how the depositions of the Doctor and the Investigating Officer have prejudicially affected the accused, for, these two witnesses have given no incriminating evidence against the present accused-petitioner. This apart, the learned trial Court was also correct in concluding that bringing of the witnesses, whose depositions had already been recorded at the earlier trial, would delay the proceedings of the trial and also prove expensive. In the facts and circumstances of the present case, taking of recourse to Section 299 CrPC by the learned trial Court cannot be said to be suffering from any infirmity, legal or factual.

17. Because of what have been discussed and pointed out above, I find no merit in the present revision and no reason to admit the same and/or allow the same. This revision is, therefore, not, admitted and the same shall accordingly stand dismissed.