ITEM NO.20                COURT NO.1               SECTION IIA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      

Petition(s) for Special Leave to Appeal (Crl) No(s).569/2009 (Arising out of Judgment and Order dated 2.12.2008 passed by  the Designated Court, Bombay in Trial No.BBC-1 B/1993)

C.B.I.                                               Petitioner(s)

                     VERSUS

ABU SALEM ANSARI & ANR.                              Respondent(s)

(With appln(s) for ex-Parte stay)

Date: 06/02/2009  This Petition was called on for hearing today.

CORAM :         HON'BLE  THE CHIEF JUSTICE         HON'BLE MR. JUSTICE P. SATHASIVAM

For Petitioner(s) Mr. A. Sharan, ASG Mr. Amit Anand Tiwari, Adv. Mr. B. Krishna Prasad,Adv.

For Respondent(s) Mr. Sushil Karanjkar, Adv. For Mr. K.N. Rai,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Heard learned Additional Solicitor General  appearing for CBI  and

learned counsel for the respondent.

The appeal is disposed of in terms of the signed order.

    (R.K. Dhawan)    (Veera Verma) Court Master    Court Master

(Signed order is placed on the file)

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.328  OF 2009 (arising out of Special Leave Petition (Criminal) No. 569/2009)

Central Bureau of Investigation …Appellant

Versus

Abu Salem Ansari & Anr. …Respondents

O     R     D    E    R

Heard the learned Additional Solicitor General appearing for the CBI and

also the learned counsel for the respondents.

Leave granted.

The  first  respondent  is  an  accused  in  a  case  pending  before  the

Designated  Court  in  Bombay  under  TADA  Act.   It  appears  that  the  first

respondent was absconding and was arrested in a foreign country.  He was

extradited and brought to India on 11.11.2005 and by that time the trail of

the other accused was over.  The prosecution wanted to rely on the evidence

recorded by the Designated Court in the earlier trial conducted wherein the

first respondent was not present as an accused. By the impugned order, the

learned Judge, Designated Court, held that the prosecution may rely on the

earlier  evidence  recorded  in  the  earlier  trial  against  the  first  respondent

subject  to  establishment  of  existence  of  any  of  conditions  precedent  as

described in second part of Section 299 of the Code of Criminal Procedure

(Cr.P.C.).  This order is challenged before us by the CBI.

-2-

Section 299 Cr.P.C. reads as under :-

“299. Record of evidence in absence of accused.-(1)  If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him,  the  Court  competent  to  try  or  commit  for  trial  such  person  for  the offence complained of, may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition  may,  on  the  arrest  of  such  person,  be  given in  evidence against  him on the inquiry  into,  or  trial  for,  the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found  or  his  presence  cannot  be  procured  without  an  amount  of  delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits on India.”

As regards the first respondent, sub-section (1) of Section 299 would

apply as he, an accused person, was absconding, his case is already split up

and has to undergo the trial.  Obviously, the evidence adduced in the earlier

trial cannot be used against the first respondent except as provided in sub-

section (1)  of  Section 299 Cr.P.C.  In the circumstances  of  the absconding

accused  appears  again,  the  prosecution  witnesses  have  to  be  examined

afresh.  But, if the deponent is dead or incapable of giving evidence or cannot

be found or his presence cannot be procured without an amount of delay,

expense or inconvenience, the prosecution would be justified in relying on the

evidence already on record taken in the earlier trial  in the absence of the

absconding accused.  

-3-

In  the  present  case,  sub-section  (2)  of  Section  299  Cr.P.C.  has  no

application.  Therefore, we make it clear that the prosecution may rely on the

earlier  evidence  recorded  in  the  earlier  trial  against  the  first  respondent

subject to establishment of existence of any of the conditions precedent as

described in first part of Section 299 Cr.P.C.

The appeal is disposed of accordingly.

…………………………….CJI ( K.G. BALAKRISHNAN)

………………………………J. ( P. SATHASIVAM )

NEW DELHI; FEBRUARY 6, 2009.