No Section 299 Order, No Conviction: Supreme Court Acquits Accused After 18-Year Absconding

A bench of Justices J. B. Pardiwala and K. Vinod Chandran acquits a murder accused because no court ever passed the mandatory order under Section 299 of the Cr.PC before recording the key witness's testimony in his absence.

The Supreme Court has acquitted Mahendra Singh of murder charges in a case arising from Chhattisgarh, holding that the testimony of a deceased prosecution witness recorded during the trial of a co-accused could not be used against him at his own trial. The reason was simple and dispositive: no court had ever passed an order under Section 299 of the Code of Criminal Procedure, 1973, recording the two jurisdictional findings required before such testimony can be admitted. The judgment, authored by Justice K. Vinod Chandran and delivered on 31 July 2026, consolidates the Court's prior decisions on Section 299 and draws a clear line between an accused who absconds and one who has forfeited the procedural protection of Section 299 through non-compliance by the prosecution.

The Murder of 1999 and an Eighteen-Year Absence

The alleged offence occurred on 1 April 1999. Two accused were charged with the murder of a person. The prosecution's case was that several witnesses, returning from a fair, saw Mahendra Singh — the first accused — sitting on the victim's chest and strangulating him. The second accused was said to have exhorted the assault and threatened the bystanders, causing them to flee.

Mahendra Singh absconded after the incident. The second accused was tried separately and acquitted. Mahendra Singh was arrested only on 11 September 2017, roughly eighteen years after the alleged offence. A fresh trial was then conducted against him.

By the time that fresh trial commenced, PW1 — the crucial eyewitness who had clearly described Mahendra Singh committing the murder in earlier proceedings — had died. Other eyewitnesses turned hostile. PW2, another eyewitness, spoke of witnessing an assault but did not identify the accused in court; he had not been produced from judicial custody for the purpose. Cross-examination of PW2 further revealed that two persons named Mahendra Singh lived in the locality where the crime occurred, making identification doubtful.

The trial court and the High Court of Chhattisgarh both relied on PW1's testimony from the earlier proceedings to convict Mahendra Singh. The conviction and sentence were upheld by the High Court, leading to this appeal before the Supreme Court.

What Section 299 Requires Before Testimony Can Be Recorded — and Used

Section 299 of the Cr.PC operates in two distinct stages, and the Court's analysis of those stages is central to the judgment.

The first stage requires proof of two jurisdictional facts before evidence can be recorded in the absence of an accused: (i) that the accused is absconding, and (ii) that there is no immediate prospect of arresting him. Both facts must be established conjunctively — satisfaction of one alone does not suffice. Only after a court passes an order finding proof of both these facts can the evidence of witnesses be recorded in the accused's absence.

The second stage governs the use of that recorded testimony at a later trial. Even where testimony has been validly recorded under the first stage, it can be used against the accused after his arrest only if the court at the fresh trial is satisfied that the witness is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without delay, expense or inconvenience unreasonable in the circumstances.

The Court characterised this structure as consequences operating in praesenti and in futuro: the recording of evidence in absence is the present consequence; its admissibility at a future trial is the future consequence. Both are conditional on the prior satisfaction of the jurisdictional facts.

Section 299 is itself an exception to Section 33 of the Indian Evidence Act, 1872. Section 33 makes testimony given in a prior judicial proceeding admissible in a later proceeding, but only where the adverse party had the right and opportunity to cross-examine the witness in the first proceeding. The right to cross-examine a witness who deposes against an accused was described by the Court as “an indefeasible right to that person which is non-negotiable.” Section 299 carves out a narrow exception to that right, available only where the accused's own conduct — absconding — has placed him outside the reach of ordinary trial process.

The Precedents: Nirmal Singh, Jayendra Vishnu Thakur, and Sukhpal Singh

The Court surveyed three prior decisions before applying them to the facts.

In Nirmal Singh v. State of Haryana, reported at (2000) 4 SCC 41, one accused died during trial and two others were declared proclaimed offenders. A Special Judicial Magistrate recorded the statements of twenty-seven witnesses under Section 299. When the absconding accused were later apprehended, five of those statements were used to convict them. The High Court had upheld the conviction after examining original records and finding that summons to five witnesses had been returned with reports of their deaths. The Supreme Court found that the first part of Section 299 had been complied with. The absence of a formal order on the second part did not prove fatal because the factual basis for that satisfaction was demonstrable from the record.

In Jayendra Vishnu Thakur v. State of Maharashtra, reported at (2009) 7 SCC 104, a TADA case, an order directing recording of evidence under Section 299 was passed on 1 April 1994. The Court found that the accused had in fact been arrested in Delhi as early as 1993, and this had been brought to the notice of the Designated Court by the investigating officer before the Section 299 order was issued. The jurisdictional fact of abscondence was therefore not established. The Court in that case held that both conditions in the first part of Section 299(1) must be read conjunctively, and that a definite finding based on cogent evidence is required — not merely the existence of an order under Section 82 of the Cr.PC.

In Sukhpal Singh v. NCT of Delhi, reported at 2024 SCC OnLine SC 800, the offence was committed in 1980. The accused absconded on 18 March 1991 and was declared a proclaimed offender. Permission was granted to proceed under Section 299. The complainant's statement, recorded in those proceedings, was later used in the 2000 trial to convict the accused after his apprehension. The Court applied the same two-part framework and upheld the conviction, finding that the procedural requirements had been met.

Drawing these decisions together, the Court articulated the governing principle: an accused who deliberately absconds cannot claim the full benefit of Section 33 of the Evidence Act, because no person can claim the benefit of a wrong committed by himself. But this principle operates as a justification for the exception, not as a substitute for the procedural preconditions. The exception is only available if those preconditions have been satisfied at the outset.

Why the Conviction in the Present Case Could Not Stand

The Court turned to the specific facts of Mahendra Singh's case and found the deficiency to be fundamental and unremedied.

When the matter came before the court in 1999 — at the time of committal or at the commencement of the trial against the second accused — no court passed an order under Section 299 recording the two jurisdictional findings. The appellant's flight and the impossibility of his immediate apprehension had to be urged before that court, proved to its satisfaction, and reflected in a specific order. That order was never made.

Because no such order existed, the testimony of PW1 recorded in the earlier proceedings was not validly covered by Section 299. It could not be used against Mahendra Singh at his trial after his arrest in 2017, regardless of whether PW1 was by then deceased.

The Court stated: “we do not find such an order having been passed in the earlier trial against the second accused.” That finding was dispositive. Without PW1's testimony, the prosecution's case against Mahendra Singh collapsed. The other eyewitnesses had either turned hostile or failed to identify him. PW2's evidence was rendered uncertain by the existence of two persons sharing the same name in the same locality.

The Court held that the prosecution, as against Mahendra Singh, had failed.

Order

The Supreme Court allowed Criminal Appeal No. 3566 of 2026, arising from Special Leave Petition (Criminal) No. 6741 of 2026. Mahendra Singh was acquitted of the charges framed against him. The Court directed that he be released if in custody. If already released on bail, his bail bonds were ordered to stand cancelled. Pending applications, if any, were disposed of.