Mahendra Singhv.State of Chhattisgarh

Supreme Court Mandates Formal Order Under Section 299 CrPC for Use of Evidence Against Absconding Accused

Case Snapshot

Case Name: Mahendra Singh v. State of Chhattisgarh

Citation: 2026 INSC 775

Bench: Justice J.B. Pardiwala and Justice K. Vinod Chandran

Date of Judgment: July 31, 2026

Area of Law: Criminal Procedure, Evidence Law, Absconding Accused

The Judgment in One Line

Evidence recorded under Section 299 CrPC cannot be used against an accused later unless a formal order proves both jurisdictional facts.

Why This Judgment Matters

This judgment is a significant clarification of Section 299 of the Code of Criminal Procedure, which allows recording of evidence in the absence of an absconding accused. The Court held that the prosecution must obtain a formal order proving both jurisdictional facts—that the accused is absconding and there is no immediate prospect of arrest—at the time of recording evidence. An order passed years later cannot cure this defect. This safeguards the accused's right to cross-examination under Section 33 of the Indian Evidence Act and prevents misuse of the exception carved out for absconding accused. The judgment acquits an accused convicted primarily on testimony recorded without such an order.

Background

On April 1, 1999, two accused were charged with murder. The prosecution alleged that the appellant (Mahendra Singh) assaulted and strangled the victim while the other accused exhorted him and threatened witnesses. The appellant absconded, while the other accused was tried and acquitted. The appellant was arrested on September 11, 2017—over 18 years later.

During the trial against the absconding appellant, the crucial eyewitness (PW1) had expired. Other eyewitnesses turned hostile, and PW2 failed to identify the accused, noting that two persons by the same name lived in the village. The trial court and High Court relied on PW1's testimony recorded earlier in the proceedings against the co-accused to convict the appellant. However, no order under Section 299 CrPC was ever passed at the time of recording that testimony.

Issues Before the Court

1. Whether evidence recorded in the absence of an absconding accused can be used against him in a subsequent trial without a formal order under Section 299 CrPC.

2. What are the jurisdictional facts that must be proved before invoking Section 299 CrPC.

3. Whether the right to cross-examine witnesses can be denied to an accused who absconds without a proper judicial finding.

What Did the Supreme Court Hold?

The Supreme Court allowed the appeal and acquitted the appellant. The Court's reasoning was detailed and anchored in settled precedent:

Section 299 Has Two Parts: The Court reiterated that Section 299 CrPC has two distinct parts. The first part requires proof of two jurisdictional facts: (i) the accused is absconding, and (ii) there is no immediate prospect of arresting him. The second part specifies when such recorded evidence can be used—only if the witness is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without unreasonable delay or expense.

Both Jurisdictional Facts Must Be Conjunctively Proved: Relying on Jayendra Vishnu Thakur, the Court held that the two conditions in the first part must be read conjunctively, not disjunctively. Proof of abscondence alone is insufficient; the prosecution must also prove that there is no immediate prospect of arrest. This finding must be based on cogent evidence and a definite categorical finding by the court.

Order Must Be Passed at the Relevant Time: The order under Section 299 must be passed at the first stage—either at committal or at the commencement of trial when the accused is found absconding. It cannot be passed later when the accused is apprehended. The jurisdictional facts must be proved and recorded contemporaneously.

Right to Cross-Examination is Indefeasible: Section 33 of the Indian Evidence Act makes a witness's prior testimony admissible only if the adverse party had the right and opportunity to cross-examine. Section 299 is an exception to this principle, but it can only be invoked upon strict compliance with its conditions. The right to cross-examine is non-negotiable and cannot be denied without proper judicial sanction.

No Man Can Claim Benefit of His Own Wrong: The exception is founded on the principle that an accused who deliberately absconds to frustrate justice cannot claim the benefit of cross-examination. However, the exception applies only when the court has properly invoked Section 299. If no order is passed, the exception does not apply.

Absence of Order Fatal to Prosecution: In the present case, no order under Section 299 was ever passed when the appellant absconded in 1999. The testimony of PW1 recorded at that time could not be used against him in the subsequent trial. With other witnesses turning hostile and PW2 failing to identify the accused, the prosecution case collapsed.

Acquittal Ordered: Since the prosecution failed to prove guilt beyond reasonable doubt, the appellant was acquitted and ordered to be released.

Key Legal Principles

1. Section 299 CrPC has two parts — jurisdictional facts for recording evidence in absentia, and conditions for using such evidence in a subsequent trial.

2. Both jurisdictional facts must be conjunctively proved — abscondence and no immediate prospect of arrest must both be established.

3. Order under Section 299 must be passed contemporaneously — at committal or trial stage when accused is found absconding, not later when apprehended.

4. Right to cross-examination is indefeasible — Section 299 is an exception to Section 33 of the Evidence Act and must be strictly construed.

5. Proof of jurisdictional facts requires cogent evidence — a definite categorical finding by the court is imperative.

6. Exception cannot be invoked without proper judicial sanction — mere abscondence is insufficient; a formal order is mandatory.

7. No man can claim benefit of his own wrong — the exception is founded on this principle, but compliance with Section 299 is still mandatory.

Important Precedents

Nirmal Singh v. State of Haryana, (2000) 4 SCC 394

• Held that Section 299 is an exception to Section 33 of the Evidence Act; the court must be satisfied that the accused is absconding and there is no immediate prospect of arrest before recording evidence in his absence.

Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104

• Held that both conditions in Section 299 must be read conjunctively; proof of jurisdictional facts requires cogent evidence and a definite categorical finding by the court.

Sukhpal Singh v. NCT of Delhi, (2021) 18 SCC 82

• Reiterated that Section 299(1) has two parts; the first provides for proof of jurisdictional facts, and the second specifies conditions for use of recorded evidence in a subsequent trial.

Practical Impact

For advocates: This judgment is crucial when defending an accused who was tried after being absconding. It provides a strong argument that evidence recorded in the absence of the accused cannot be used unless a formal order under Section 299 was passed at the relevant time. The absence of such an order is fatal to the prosecution.

For future litigation: Prosecutions must now ensure that when an accused absconds, they move the court for an order under Section 299 with proof of both jurisdictional facts. Failure to do so will render all evidence recorded in the accused's absence inadmissible in a subsequent trial.

May be cited: In any criminal trial where the prosecution seeks to rely on evidence recorded under Section 299 CrPC, particularly when no formal order was passed or when the conditions of the section were not strictly complied with.

Lawcurb Quick Insight

The Court's insistence on a contemporaneous judicial finding ensures that the exception for absconding accused is not misused. The judgment reinforces that procedural safeguards cannot be bypassed even when the accused appears guilty—the prosecution must follow the law to secure a conviction.

Lawcurb Practice Note

When an accused absconds, immediately move the court for an order under Section 299 CrPC with evidence proving both abscondence and no immediate prospect of arrest. Without such an order, all evidence recorded in the accused's absence will be inadmissible in a subsequent trial.

Remember This Ratio

Evidence under Section 299 CrPC is inadmissible against an accused unless a formal order proves both abscondence and no immediate prospect of arrest.

Exam Lens

Q: What are the two jurisdictional facts required to be proved before invoking Section 299 of the CrPC? A: The prosecution must prove (i) that the accused is absconding, and (ii) that there is no immediate prospect of arresting him. Both conditions must be read conjunctively and proved by cogent evidence.

Q: When can evidence recorded under Section 299 CrPC be used against an accused in a subsequent trial? A: Such evidence can be used only if the witness is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without unreasonable delay, expense, or inconvenience. Additionally, the evidence must have been recorded after a valid order under Section 299.

Q: What is the relationship between Section 299 CrPC and Section 33 of the Indian Evidence Act? A: Section 33 of the Evidence Act makes prior testimony admissible only if the adverse party had the right and opportunity to cross-examine. Section 299 is an exception to this rule, allowing evidence to be recorded in the absence of an absconding accused. However, as an exception, it must be strictly construed and complied with.

Final Outcome

• Appeal allowed — the Supreme Court set aside the conviction and sentence.

• Accused acquitted — the appellant stands acquitted of all charges.

• Release ordered — the appellant shall be released if in custody; bail bonds cancelled if already released.

• Prosecution case failed — without the testimony recorded under Section 299 (which was inadmissible), the prosecution could not prove guilt beyond reasonable doubt.

• No costs — pending applications disposed of.

Lawcurb Verdict

This judgment is a significant safeguard of the accused's right to a fair trial. By insisting on strict compliance with Section 299, the Court has prevented the prosecution from using evidence recorded in the absence of an accused without proper judicial sanction. The principle that procedural safeguards cannot be bypassed is reinforced, ensuring that even in cases of absconding accused, the law must be followed meticulously. A victory for procedural fairness and the rule of law.

This report is prepared by Lawcurb for educational and informational purposes only. It is a concise summary of the judgment and should not be construed as legal advice. Readers are encouraged to refer to the original judgment before relying on any legal proposition.