Can evidence be recorded in absence of the accused?

Question: Can evidence be recorded in absence of the accused?

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Answer

Section 299 of the Code of Criminal Procedure lays down the provision regarding the recording of evidence in the absence of the accused.

The bare reading of the section suggests that the Court which records the proceedings under it must first record an order when in its opinion, it was proved that the accused has absconded and that there is no immediate prospect of his arrest. Where no such order is recorded, it is enough if the Court is satisfied with the requirements. The Court is then bound to proceed under the section.

The Hon’ble SC in the case of Nirmal Singh v. State of Haryana, AIR 2000 SC 1416 analyzed the provisions of the section. This section deals with the recording of evidence in the following two circumstances:

• where the accused is absent and there is no immediate prospect of his arrest, and
• where the offender is unknown. In the first case, the Court can record depositions of prosecution witnesses.

These can be offered at the trial in three cases:

(1) if the witness is dead;

(2) if he is incapable of giving evidence; or

(3) if his attendance would cause unreasonable delay, expense, or inconvenience.

• Secondly, where the offender is unknown and the offence committed is punishable with death or imprisonment for life, the High Court or the Sessions Judge may direct a first-class Magistrate to record prosecution evidence.

Depositions so recorded may be used at the trial (1) if the witness is dead, (2) is incapable of giving evidence, or (3) is beyond the limits of India.

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