- In the case of Mohammad Rafi and ors. vs. State of Kerala and ors. the Hon’ble Kerala HC was called upon to interpret section 299 of the Code of Criminal Procedure, and it held that for recording the evidence of witnesses under 299 CrPC, it is imperative that the accused has absconded and there is no immediate prospect of arresting him.
- The appeals arose from an order passed in the infamous case of Professor TJ Joseph, whose hand was chopped off for blasphemy in setting the question paper for the exam.
- In the aforementioned order, deposition of the professor’s wife was allowed to be given in evidence against accused nos. 2 to 8 and 10 and 12, but not against accused 9 and 11, the reason being that they were not absconding when the evidence of the professor’s wife was recorded under section 299 CrPC. The two accused were on bail and no charge sheet was filed against them. Aggrieved, the petitioners (accused nos. 2 to 6) moved the HC.
- The Court, after examining the scope of Section 299, has observed that the twin conditions mentioned in section 299, that is, firstly, that the accused has committed an offence and has absconded, and secondly, that there is no immediate prospect of arresting him have to be satisfied if the evidence of witnesses are being recorded under section 299.
- Reliance was placed by the Court on the decision of the Allahabad HC in the case of Emperor vs. Rustom (AIR 1915 All) in which the Hon’ble Court had held that the Court which records the proceedings under it must first record in its order that in its opinion it has been sufficiently proved that the accused has absconded and that there was no immediate possibility for his arrest.
- The Court also observed that the exercise of recording evidence which ought to have been done by the judge of a trial court in the absence of the absconded accused cannot be done by the Judge when the absconded accused is later put to trial after he has been apprehended.
- It was also held by the Court that the proof of abscondence and the lack of the possibility of arrest are a condition precedent to the recording of evidence of the witnesses under section 299.
- Thus, while allowing the appeal, the HC was of the opinion that the impugned order could not be sustained because the jurisdictional facts of section 299 were not appreciated by the trial Judge, by whom the deposition of witnesses were recorded.
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