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 matter to be gone into at the time of the subsequent trial, after apprehending the accused, who was absconding. In other words, proof with respect to abscondence of the accused is a condition precedent to record deposition of witnesses for the purpose of Section 299; enabling its use in the subsequent trial against those absconded but later apprehended."  

The Court further observed that the notes on clause No.24 which deals with the amendment to Section 299 are a sure pointer that the proof with respect to abscondence of the accused has to be adduced as a pre-condition for recording witness deposition before the trial Magistrate or the committing Magistrate, in absentia the absconding accused.

Had it been otherwise, the exercise of such power by the committing Magistrate is incomprehensible and unworkable, the order stated. The very provision of Section 299 makes it axiomatic that this exercise cannot be relegated to be considered by the Sessions Judge, who tries the absconding accused subsequently, pursuant to his apprehension.

As such, allowing the appeal, the Court held that the impugned order cannot be sustained inasmuch as the jurisdictional facts under Section 299 were not gone into or satisfied by the trial Judge, who recorded the witness depositions.

As a matter of fact, it was recorded that the trial Judge was not recording depositions for the purposes of Section 299, but as evidence against the co-accused persons in the same crime who had absconded earlier.

What is the sensational palm chopping case?

The case relates to the incident where a seven-member gang chopped off the right palm of a college professor, T J Joseph, while he was returning home from Sunday Mass at 8 am on July 4, 2010. The seven accused who attacked the professor near his home were later identified as members of the Popular Front of India (PFI).

The professor was attacked for allegedly committing blasphemy by insulting Prophet Mohammed in a question paper prepared by him for an internal examination conducted by the Malayalam department of the Newman College at Thodupuzha. Though a case was registered against the professor for hurting religious sentiments, a court had later absolved him.

Case Title: Mohammed Rafi & Ors v. State of Kerala & Anr. and connected matters

Citation: 2022 LiveLaw (Ker) 23

Click Here To Read/Download The Judgment