C.B.I. Vs. Abu Salem
Ansari & ANR.  INSC 226 (6 February 2009)
SUPREME COURT OF
INDIA 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.
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
For Respondent(s) Mr.
Sushil Karanjkar, Adv.
For Mr. K.N. Rai,Adv.
UPON hearing counsel
the Court made the following ORDER 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.
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.
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
(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.
( K.G. BALAKRISHNAN)
( P. SATHASIVAM )