Witness Testimony Recorded Without Section 299 CrPC Order Cannot Be Used Against Absconded Accused Rules Supreme Court

The Supreme Court of India, in Mahendra Singh v. State of Chhattisgarh (2026 LiveLaw (SC) 747), delivered on July 31, 2026, has acquitted a murder accused by holding that witness testimony recorded during the trial of a co-accused cannot be used against an absconded accused in a subsequent trial unless the mandatory procedural requirements under Section 299 of the Code of Criminal Procedure, 1973 (CrPC), corresponding to Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), have been satisfied. The ruling clarifies an important procedural safeguard in criminal law that protects the rights of absconding accused persons.

Facts: Murder Charge and the Absconding Accused

The case involved an allegation of murder against the appellant, Mahendra Singh. According to the prosecution, Mahendra Singh was alleged to have been sitting on the victim's chest and strangulating him. Following the incident, the accused absconded and his case was separated from that of the co-accused. The co-accused was tried independently in a separate proceeding and was eventually acquitted of all charges.

Mahendra Singh was subsequently arrested on September 11, 2017, and faced a separate murder trial. However, a critical development undermined the prosecution's case: the principal eyewitness, who had testified during the co-accused's trial, died before the fresh trial against Mahendra Singh could commence. The prosecution sought to rely on the testimony that this witness had given during the co-accused's trial. The question before the Court was whether such testimony was admissible against Mahendra Singh in his separate proceeding. Understanding the procedural requirements for such situations is essential, much like understanding the steps involved in filing a private criminal complaint before a magistrate.

Section 299 CrPC and Section 335 BNSS: The Jurisdictional Conditions

Section 299 of the CrPC, now corresponding to Section 335 of the BNSS, establishes a specific procedure for recording evidence in the absence of an accused person. The provision requires two jurisdictional conditions to be satisfied before a court can record evidence in the accused's absence. First, the court must be satisfied that the accused has absconded. Second, the court must determine that there is no immediate prospect of the accused being arrested.

Only after the court records its satisfaction on both these conditions can evidence be recorded in the accused's absence. Furthermore, the provision specifies that such evidence is usable only if the witness has subsequently died, become incapable of giving evidence, cannot be located, or cannot reasonably be produced without an unreasonable amount of delay or expense. The Supreme Court has previously addressed the interpretation of these provisions in cases examining the admissibility of dead witness testimony against absconded accused persons, establishing important precedents on the standard of judicial satisfaction required.

The Court's Ruling: Evidence Cannot Travel Between Trials

The Supreme Court held that evidence recorded during the trial against one accused cannot be used against another accused in a subsequent trial unless a specific order under Section 299 CrPC (Section 335 BNSS) was passed in respect of the absconding accused. The Court emphasized that the protection under Section 299 is personal to the accused against whom the order is sought. An order passed in one proceeding does not automatically extend to another proceeding, even if the underlying case arises from the same incident.

In this case, no Section 299 order had been passed against Mahendra Singh. The testimony of the eyewitness was recorded during the co-accused's trial as part of the regular trial procedure against that co-accused. It was not recorded under the special provisions of Section 299 with reference to Mahendra Singh. Therefore, when the eyewitness died before Mahendra Singh's trial could begin, the prosecution could not fall back on the testimony recorded in the other proceeding. The Court's meticulous application of procedural requirements mirrors the approach taken in clarifying the powers of advocate commissioners under Section 38 of the BNSS, where statutory conditions must be strictly observed.

Acquittal and Its Reasoning

With the principal eyewitness dead and the testimony from the co-accused's trial held inadmissible, the prosecution was left without its key evidence. The Supreme Court accordingly acquitted Mahendra Singh of the murder charge. The Court's reasoning underscored that procedural safeguards in criminal law exist for a reason: they protect the fundamental right of an accused person to a fair trial, including the right to cross-examine witnesses and to have evidence tested in the accused's own proceeding.

The judgment serves as a reminder to investigating agencies and prosecutors of the importance of following proper procedure when an accused absconds. If the prosecution anticipates that a witness may become unavailable, it must take timely steps to invoke Section 299 CrPC (Section 335 BNSS) and obtain a court order permitting the recording of evidence in the accused's absence. Failure to do so can result in the permanent loss of critical evidence. Practitioners who regularly handle cases involving absconding accused persons should be familiar with these procedural requirements, just as they should understand the procedures for filing applications for discharge under the BNSS and the rules governing electronic evidence in criminal proceedings.

Key Takeaways for Legal Practitioners

This judgment offers several important lessons. First, Section 299 CrPC (Section 335 BNSS) is a safeguard that must be specifically invoked. It does not operate automatically, and evidence recorded without complying with its requirements is inadmissible against the absconding accused. Second, the separation of trials does not create a bridge for evidence. Testimony given in one trial exists only within that proceeding unless statutory provisions permit its use elsewhere. Third, prosecutors must be proactive in preserving evidence when an accused absconds. The timely filing of a Section 299 application can prevent the loss of evidence that may later prove irreplaceable. The ruling reinforces the broader principle that procedural compliance is not a mere formality but a substantive protection essential to the administration of justice.