To Record Witness Evidence Under 299 CrPC, Must Prove That The Witness Is Absconding With No Possibility Of Arrest: Kerala HC
- 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.
Plea For Conducting DNA Test Cannot Be Entertained Unless Birth Documents Are Under Challenge: Tripura HC
- In the case of Nirmal Ghosh vs. Partha Ghosh the Hon’ble Tripura HC has held that any plea for conducting a DNA test cannot be entertained by the court unless there is an explicit challenge to the birth documents and school records of a person.
- In the instant case, the petitioner had alleged that the respondent, Partha Ghosh was not the son of the deceased Kshitish Ghosh and under the garb of certain fraudulent wills in his name, he was selling off the properties which were in dispute before the trial Court.
- In the plea, there was a further request for directions to allow the conduct of a DNA Test.
- Refusing the same, the Court observed that unless there is a challenge to the birth documents and the school certificates to show that Kshitish Ghosh is not the father of Partha Ghosh, there cannot be any direction for a DNA Test to declare whether the first respondent is indeed the son of Kshtish Ghosh.
- The Court had also observed, after hearing the rival contentions of both the parties, that it is not in dispute that the documents of the respondent like his birth certificate, school records, records from the revenue departments, etc all reflect that the respondent was indeed the son of Kshitish Ghosh. The Court held that the petitioner would first have to challenge the documents, before a plea for DNA test can be entertained.
- Thus the Court granted liberty to the petitioner to move applications before the concerned court to seek appropriate remedy in support of their claim.