MAHENDRA SINGH Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) 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 Sec. 299 of the Code of Criminal Procedure, 1973 (Cr. PC).

(3.) The issue is no longer res integra, this Court having interpreted Sec. 299, Cr.PC in a number of decisions. First, we refer to the decision in Nirmal Singh v. State of Haryana; (2000) 4 SCC 41 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 Sec. 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 Sec. 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 Sec. 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 Sec. 299, the Court must be satisfied that the accused is absconding and there is no immediate prospect of arresting him. This procedure under Sec. 299 was held to be an exception to Sec. 33 of the Indian Evidence Act, 1872. Sec. 33 makes admissible the testimony of a witness examined in a judicial proceeding, relevant as proof of the truth 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. Sec. 299 being an exception, it was held as under: -