Must Prove Accused Is Absconding With No Immediate Prospect For Arrest To Record Witness Deposition U/S 299 CrPC: Kerala High Court

In a significant judgment, the Kerala High Court ruled that before recording witness depositions under Section 299 of the Code of Criminal Procedure, it should be established that the accused has absconded and that there is no immediate prospect of arresting him. A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran was called upon to answer an intriguing question on the interpretation of Section 299 of the CrPC. After referring to a plethora of decisions, it concluded as follows:"We are, therefore, of the definite opinion that the satisfaction of the facts specified in Section 299, [i.e. (1) a person accused of having committed an offence has absconded and (2) there is no immediate prospect of arresting him] should necessarily be recorded in the first stage itself, that is to say, before recording the deposition of the witnesses."The Bench added that proof of the accused absconding is a condition precedent to record witness deposition for the purpose of Section 299; enabling its use in the subsequent trial against those absconded but later apprehended.The appeals stemmed from an order passed in the infamous crime against Professor T.J.Joseph, who was brutally attacked and his right hand chopped off, alleging blasphemy in setting up a question paper for college examinations. The impugned order partly allowed an application filed by the National Investigation Agency (NIA) under Section 299 seeking issuance of necessary orders to take the sworn in statement of the Professor's wife as evidence against 11 accused in the ongoing trial before the Special NIA Court.The order allowed the deposition to be given in evidence against accused Nos. 2 to 8, 10 and 12 but not against accused Nos.9 and 11 on the finding that they were not absconding at the time when final reports were filed, as they were on bail and no charge sheet was filed against them. Challenging this, the aggrieved accused persons approached the High Court. Advocates V. John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Appu Babu, Mamatha S. Anilkumar and Anila T. Thomas appeared for the appellants.ASG of India Manu S. and Advocate Sindhu Ravishankar appearing for the respondents argued that the appeals were not maintainable since the impugned order is an interlocutory order, from which no appeal lies, going by Section 21 of the N.I.A Act. The Court was posed with two questions: 1) Whether it is mandatory for the court which records witness depositions to pass an order recording the existence of jurisdictional facts stipulated in Section 299 in cases where the accused are absconding (i.e., (i) the accused has absconded and (ii) there is no immediate prospect of arresting him; for such evidence recorded to be used subsequently in a trial against those who were earlier absconding, if by any eventuality of, death, incapacitation or any other valid ground it is impossible to procure the presence of that witness) The Court answered this question in the affirmative. After examining the scope and object of Section 299, the Bench found that it operates in two different phases/stages in terms of points of time. The first stage speaks about things in praesenti, whereas stage 2 is couched in futuro, pointing to a future uncertain event.Thus, the language employed in Section 299 itself would manifest that proof regarding the abscondence of the accused person and the negligible prospect of his immediate arrest is something to be looked into and satisfied before recording the deposition of the witnesses.The Court noted that there was no Supreme Court judgment to this effect. However, reliance was placed on the Allahabad decision of Emperor v. Rustom [AIR 1915 All 411] where it was held that the court which records the proceedings under it must first of all record an order that in its opinion it has been proved that the accused has absconded and that there is no immediate prospect of his arrest.2) If the court has only recorded the evidence of the witnesses in the trial against the co-accused, can the court conducting the subsequent trial, after apprehending the absconding accused, pass an order recording the existence of the above facts and transfer such evidence to the subsequent trial on the strength of such an order? The Court answered this question in the negative. The exercise which ought to have been done by the trial Judge while recording the depositions of witnesses, in absentia the absconding accused persons in terms of Section 299, cannot be done by the Judge when the absconding accused is put to trial pursuant to his apprehension. The Court noted that as laid down by several precedents, Section 299 being an exception to Section 273 of the Code and Section 33 of the Evidence Act, besides being apparently in conflict with the foundational tenets of criminal jurisprudence, requires strict compliance."It could, therefore, be held as a corollary that such proof with respect to abscondence and lack of possibility of an arrest is not a...

Must Prove Accused Is Absconding With No Immediate Prospect For Arrest To Record Witness Deposition U/S 299 CrPC: Kerala High Court

Hannah M Varghese

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