Strict limits on evidence recorded in an accused's absence: prior depositions were invalid without absconding and no immediate prospect of arrest.

Section 299 CrPC applies only where the accused is shown, on cogent material and a clear judicial finding, to have absconded and there is no immediate prospect of arrest; those conditions are conjunctive and the provision must be strictly construed. The record indicated that the accused had already been arrested before the impugned order, so the foundational facts for admitting evidence recorded in his absence were absent. Section 14(5) TADA similarly required recorded reasons and was not properly attracted on these facts. The prior depositions could not validly be used against the accused, and the impugned order was unsustainable.

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Issues: Whether the evidence of witnesses recorded in the absence of the accused could be used against him under Section 299 of the Code of Criminal Procedure, 1973 and Section 33 of the Indian Evidence Act, 1872, and whether the order purporting to invoke Section 14(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 was legally sustainable.

Analysis: Section 299 of the Code operates only when it is proved that the accused has absconded and that there is no immediate prospect of arresting him; both conditions are conjunctive and must be established by cogent material with a clear finding by the court. The provision is an exception to the ordinary rule of presence of the accused at trial and must therefore be strictly construed, with scrupulous compliance and recorded reasons. The record showed that the prosecution was aware that the accused had already been arrested before the impugned order was passed, and the materials placed before the court did not justify a finding that he was an absconder with no immediate prospect of arrest. In those circumstances, the foundational facts necessary to invoke Section 299 were absent. Section 14(5) of TADA also required reasons and contemplated use of evidence only where the court thought it fit to proceed in the absence of the accused or his pleader; that provision was not properly attracted on the facts found. The right of cross-examination and fair trial considerations reinforced the need for strict adherence to the statutory preconditions.

Conclusion: The order allowing use of the prior depositions was unsustainable and the impugned order was liable to be set aside.

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