When an accused absconds and a co-accused is tried alone, what becomes of the evidence recorded in that first trial if the absconder is arrested years later — after the key witness has died? In Mahendra Singh v. The State of Chhattisgarh, 2026 INSC 775, decided on 31 July 2026, the Supreme Court held that such testimony can be read against the absconder only if the court had, at the time, passed a formal order under Section 299 of the Code of Criminal Procedure recording that the accused was absconding and that there was no immediate prospect of arresting him. Absent that order, the deposition is inadmissible — and in this case, the conviction built on it could not stand.
The Background
The prosecution case arose out of a murder in 1999. Two men were accused; the appellant was alleged to have caused the death while his co-accused was said to have intimidated witnesses. The appellant could not be found and was declared an absconder. His co-accused was tried alone and acquitted. The appellant surfaced only in 2017, some eighteen years later, and was then put on trial.
By that time the eyewitness who had deposed in the first trial had died. The trial court read that earlier deposition against the appellant, convicted him, and the High Court affirmed. Before the Supreme Court, the decisive question was whether the deposition could be used at all.
A bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran answered that it could not, allowed the appeal on 31 July 2026, and acquitted the appellant.
The Scheme of Section 299
What the Supreme Court Held
The Court held that the two jurisdictional facts must be proved conjunctively, and that only an order finding both of them established enables the later use of testimony recorded in the absence of the accused. The order is not an empty formality. It is the legal foundation on which the exception to the ordinary rule — that evidence must be taken in the presence of the accused — rests. Where no such order was passed when the accused absconded, the foundation is missing, and nothing that happened afterwards can repair it.
The consequence in this case was stark. The deposition of the deceased eyewitness was the whole of the substantive case against the appellant. Once it fell, the conviction fell with it, notwithstanding that the appellant had remained untraceable for eighteen years. The judgment is a reminder that an accused person cannot be convicted on convenience; the statutory route to using absentee evidence must have been followed at the time, or the evidence is simply not available.
Why the Order Must Come First
The temptation in a case such as this is to reason backwards: the accused plainly had absconded, the witness plainly is dead, so the deposition may as well be read. The Supreme Court rejected that approach. The satisfaction under Section 299 is one the court must reach at the time evidence is recorded in the absence of the accused, because it is that contemporaneous judicial finding which legitimises an otherwise irregular mode of taking evidence. A retrospective rationalisation, reached years later at the absconder's own trial, is not a substitute.
The Court also noted the position under the new procedural code: Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023 carries the same scheme, so the discipline laid down here governs trials under the new law equally.
What This Means in Practice
For the prosecution, the lesson is procedural rigour at the moment an accused absconds. An application should be moved promptly, supported by the record of efforts to trace and arrest, and a reasoned order obtained before witnesses are examined in absentia. The absence of that order may cost the prosecution its entire case decades later, precisely in those cases where witnesses have died and the preserved deposition is all that remains.
For the defence, a trial in which the State seeks to read depositions from an earlier co-accused's trial should begin with an examination of the original record: was there a Section 299 order at all, and does it record satisfaction on both jurisdictional facts? This judgment establishes that the objection goes to admissibility, not merely to weight, and that it can prove decisive even at the appellate stage.
Frequently Asked Questions
What does Section 299 CrPC actually permit?
It is an exception to the rule that evidence must be recorded in the presence of the accused. If it is proved that an accused has absconded and there is no immediate prospect of arresting him, the court may record the depositions of prosecution witnesses in his absence. Those depositions may later be used against him if the deponent has died, is incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay or expense.
What are the two jurisdictional facts the court must record?
First, that the accused has absconded; second, that there is no immediate prospect of arresting him. The Supreme Court held that both must be found to exist together, and that an order recording this satisfaction must be passed at the time the accused absconds — it cannot be supplied retrospectively after he is apprehended.
Why was the appellant acquitted rather than retried?
The only substantive evidence connecting him to the 1999 murder was the eyewitness deposition from the co-accused's trial, and the witness had since died. Since no Section 299 order had been passed in that trial, the deposition was inadmissible against the appellant, leaving no evidence on which a conviction could rest.
What is the corresponding provision under the new code?
Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 299 CrPC in materially similar terms. The discipline the Supreme Court has insisted upon — a prior, reasoned order recording both jurisdictional facts — applies equally to proceedings governed by the BNSS.