Mahendra Singh vs The State Of Chhattisgarh
- Court
- Supreme Court
2026 INSC 775
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.3566 of 2026
(@ Special Leave Petition (Crl.) No.6741 of 2026)
Mahendra Singh
….Appellant
Versus
The State of Chhattisgarh
….Respondent
J U D G M E N T
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,
1
we refer to the decision in Nirmal Singh v. State of Haryana
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2026.07.31
14:53:08 IST
Reason:
1
(2000) 4 SCC 41
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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
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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
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dead and hence the use of their prior testimonies was found
justified by this Court.
5. Jayendra Vishnu Thakur v. State of Maharashtra &
2
Another 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
absconding accused was arrested way back in 1993, in Delhi and
the fact was brought to the notice of the Designated Court by
none other than the I.O in the TADA case, before the order under
Section 299 of the Code was issued on 01.04.1994.
2
(2009) 7 SCC 104
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6. Dilating upon the expression ‘proved’ as appearing in
Section 299 of the Code, this Court observed thus in paragraph
16, after extracting Section 299 & paragraph 25 of the judgment,
as under: -
16. “… It is neither in doubt nor in dispute that sub-section
(1) of the said provision is in two parts—the first part provides
for proof of jurisdictional fact in respect of abscondence of
an accused person and the second that there was no
immediate prospect of arresting him. In the event, an order
under the said provision is passed, deposition of any witness
taken in the absence of an accused may be used against him
if the deponent is dead or incapable of giving evidence or
cannot be found or his presence cannot be procured without
any amount of delay, expense or inconvenience which, under
the circumstances of the case, would be unreasonable.
xxx xxx xxx
25. “ ...Under Section 3 of the Evidence Act like any other fact,
the prosecution must prove by leading evidence and a
definite categorical finding must be arrived at by the court in
regard to the fact required to be proved by a statute.
Existence of an evidence is not enough but application of
mind by the court thereupon as also the analysis of the
materials and/or appreciation thereof for the purpose of
placing reliance upon that part of the evidence is imperative
in character.”
7. We find it apposite to extract paragraph 29 also from
2
Jayendra Vishnu Thakur which emphasise the requirement to
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find the existence of both the jurisdictional facts, conjunctively
and not disjunctively as under: -
29. Indisputably both the conditions contained in the first part
of Section 299 of the Code must be read conjunctively and
not disjunctively. Satisfaction of one of the requirements
should be not sufficient. It was thus, obligatory on the part of
the learned court to arrive at a finding on the basis of the
materials brought on record by bringing a cogent evidence
that the jurisdictional facts existed so as to enable the court
concerned to pass an appropriate order on the application
filed by the Special Public Prosecutor.
3
8. Sukhpal Singh v. NCT of Delhi relied on both the above
decisions. Therein, the offence committed in the year 1980 was
of the husband murdering his wife, who fled from the scene of
occurrence. The efforts to trace him out having turned futile,
proceedings under Section 82 and 83 of the Cr. PC was initiated
against him. The accused was declared as a proclaimed
offender. A chargesheet came to be filed under Section 299
Cr.PC. The crucial witness, who was the complainant, a
neighbor, along with two Head Constables and the Inspector
who investigated the case, were examined in the proceedings
before the Magistrate. Later, the accused was apprehended in
3
2024 SCC OnLine SC 800
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the year 2000 and put to trial wherein 24 witnesses were
examined and 48 documents were exhibited. The complainant
could not be produced in the trial, but his statement was relied
on by the trial court to convict the accused. The defense argued
that the statement was one recorded under Section 161, Cr.PC
which was resisted by the prosecution pointing out the
proceedings under Section 299. It was found that after the
accused absconded on 18.03.1991, the accused was declared an
absconder and permission was granted by the Court to proceed
with the trial by resorting to procedure under Section 299
Cr.PC. It was held so: -
31. Sub-section (1) of Section 299 CrPC is in two parts, the
first part provides for proof of jurisdictional fact in respect of
abscondence of an accused person and the second that there
was no immediate prospect of arresting him. In the event, an
order under the said provision is passed, deposition of any
witness taken in the absence of an accused may be used
against him if the deponent is dead or incapable of giving
evidence or cannot be found or his presence cannot be
procured without any amount of delay, expense or
inconvenience which, under the circumstances of the case,
would be unreasonable.
9. Invocation of Section 299 hence is possible only when two
jurisdictional facts are established which leads to two
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consequences, one in praesenti and the other in futuro . The proof
of jurisdictional facts required for invocation of Section 299 are
on two aspects, one that the accused is absconding and the other
that there is no immediate prospect of arresting him. 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, which
again can only be done, if the court is satisfied that the presence
of that witness cannot be procured, because he is dead,
incapable of giving evidence or cannot be found or his presence
cannot be procured without an amount of delay, expense or
inconvenience, which in the circumstances of the case, would be
unreasonable. The very intention of the provision is to ensure
that, by deliberately taking flight, the accused does not frustrate
the prosecution and thus puts in jeopardy the very criminal
justice delivery system. It is also founded on the principle that an
accused who deliberately goes undercover, attempting to
frustrate the investigation and the trial, cannot claim the right of
cross examining every witness, as provided under Section 33
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which though a valuable right available to the accused, would
not be available, if by his own actions, the accused remains
absconding. It is founded on the principle that no man can claim
the benefit of a wrong committed by himself.
10. The order under Section 299 has to conclusively find proof
of both the jurisdictional facts for invocation of Section 299, which
has to be passed at the first stage; at the committal stage or at the
trial stage, when the accused is found absconding and not when
he is subsequently apprehended. If there is only one accused,
there is no question of committing the case for trial if he is
absconding and then the evidence could be taken by the
Magistrate himself. On the other hand, if after committal, the
accused absconds, again the same procedure has to be followed
by the Sessions Court which would go into the two jurisdictional
aspects and on finding the same, proceed to examine the
witnesses. When there are more than one accused and one of
them absconds, then, after finding proof of the jurisdictional
facts; of the flight and the impossibility of immediate arrest, the
trial could be proceeded against the accused brought before the
Court and concluded. Then, the testimony of such witness can
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be relied on in the fresh trial, after arrest of accused, without
giving the accused an opportunity of cross examination if the
Court concludes that the said witness cannot be found or their
presence cannot be procured.
11. The above interpretation is crucial insofar as the decision
in the present case. Two accused were arrayed, charging them
for the offence of murder of a person on 01.04.1999. The
prosecution case was that some of the prosecution witnesses
were coming after a fair, when they witnessed an incident where
the appellant herein was assaulting a person, sitting on his chest
and strangulating him. The other accused was found exhorting
the assault and he threatened the passersby. Frightened by the
threats hurled, the witnesses left the scene. The appellant who
was alleged with the overt act absconded and the other was
tried, but acquitted. The appellant was arrested on 11.09.2017
and he was tried for the murder of the victim.
12. At the trial stage, after more than a decade and a half, the
crucial witness PW1 was not available, having expired. There
were other eyewitnesses who turned hostile. PW2 was one
eyewitness who though spoke of having seen the assault, did not
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identify the accused, who was not produced from judicial
custody. The cross examination of the said witness also indicated
that there were two persons by the name Mahendra Singh in the
village, the locality in which the crime occurred. The
identification or the absence of it hence becomes critical and the
eyewitness’s testimony cannot inculpate the accused. As we
noticed, the other witnesses turned hostile.
13. The reliance by the trial court and the High Court was on
the testimony of PW1 at the earlier instance where he clearly
narrated about the first accused having committed the murder.
However, there was no order passed under Section 299 in the
year 1999 when the matter was brought before Court, either at
the time of committal or at the time of commencement of trial.
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. Only an order passed, finding proof of both the
jurisdictional facts would enable testimony of the witness
recorded at that stage to be relied on at a later stage; when the
presence of that witness cannot be procured.
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14. In the present case, we do not find such an order having
been passed in the earlier trail against the second accused. The
prosecution, hence, as against the first accused, the appellant
herein, fails. The appellant would stand acquitted of the charges
framed against him. He would be released, if in custody, or if
already released on bail, his bail bonds shall stand cancelled.
15. The Appeal is allowed.
16. Pending applications, if any, shall also stand disposed of.
.……………………………... J.
(J. B. PARDIWALA)
..………….…………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
JULY 31, 2026.
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