Judgment 1. The present reference has been made by Judicial Magis-trate, 1st Class, Patna city. The points of reference are as follows : (i) Cart the evidence recorded earlier, after separating the trial of the petitioner accused, be treated as evidence recorded under Section 299. Cr PC against the absconder accused apprehended later on. (ii) If both the sides adopt the deposition recorded earlier, can it be used under Section 299, Cr PC against the petitioner accused brought for trial. 2. The facts necessary for disposal of the aforesaid two question referred by trial Court are that a case under Section 498-A was registered against 15 accused-persons. Eleven accused-persons appeared and the four accused-persons including Tribhuwan Prasad Burnwal, who was apprehended lateron were absconding. On 15.7.1994 four accused were absconding. The trial Court proceeded against 11 accused- persons and ordered for issuance of permanent warrant of arrest against the absconding accused-persons including Tribhuwan Prasad. 3. Thereafter the trial against 11 accused-persons proceeded and they have been convicted and against the order of conviction, they have preferred an appeal, which is pending. Lateron out of the aforesaid absconding accused-persons Tribhuwan Prasad was arrested and was detained in custody. He moved an application for bail to this Court and this Court directed the trial Court to proceed with the trial and conclude the trial. On 30.4.1998 a petition was filed on behalf of the accused for treating the case under Section 299, Cr PC. It was specifically stated on behalf of the accused that they would not cross examine any witnesses. The charge was framed on 12.5.1998 and 4.6.1998, a petition was filed on behalf of the prosecution stating therein that the statements made by the witnesses examined earlier in chief be adopted in this case also and the witnesses be summoned for cross examination. The defence also filed a petition on the same day and stated that the accused does not want to cross examine the witnesses, who have already been examined. The arguments were heard on behalf of defence on 16.7.1998 and 3.8.1998 was fixed for argument on behalf of the prosecution. Thereafter two petitions were filed on behalf of the prosecution, wherein a prayer has been made that the trial should proceed afresh as the procedure adopted in this case is illegal. 4. The arguments were heard on behalf of defence on 16.7.1998 and 3.8.1998 was fixed for argument on behalf of the prosecution. Thereafter two petitions were filed on behalf of the prosecution, wherein a prayer has been made that the trial should proceed afresh as the procedure adopted in this case is illegal. 4. With regard to point No. 1 it is to be stated that the general rule is that the witnesses are to be examined in presence of the accused and an opportunity to cross examine should be provided to him. Section 299, Cr PC is an exception to the said rule. It provides inter alia that if an accused-person has absconded, and that there is no immediate prospect of arresting him, then 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 enquiry into, or trial for, the offence with which he is charged, if the deponentis 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, In other words, the requirement is that the evidence recorded behind the back of the accused can be taken into consideration on fulfilment of the two conditions namely that the accused was absconding and there is no immediate prospect of his arrest and secondly that the said evidence can be taken in evidence only when the witnesses are already dead or incapable of giving evidence or cannot be found or his presence cannot be procured without any delay, expense or inconvenience. 5. Coming to the facts of this case, it appears that four accused including Tribhuwan Prasad were absconding and permanent warrant of arrest was issued. No doubt, no specific order was passed by the Magistrate against the absconding accused for bifurcating their trial. The Court recorded the evidence of the witnesses after coming to the conclusion that the other accused-persons have absconded and there is no immediate prospect for their arrest thus the first requirement of Section 299. No doubt, no specific order was passed by the Magistrate against the absconding accused for bifurcating their trial. The Court recorded the evidence of the witnesses after coming to the conclusion that the other accused-persons have absconded and there is no immediate prospect for their arrest thus the first requirement of Section 299. Cr PC though it is desirable that the Court should record a finding in the order- sheet regarding abscondence of the accused and non-prospect of his immediate arrest but omission to record will not render the evidence recorded inadmissible if it is clear from the material on record that those circumstances existed at the time of recording of the statement. Before the evidence can be used under Section 299 it should be also shown that other conditions as mentioned in the section has also been fulfilled. That it is to say it should be shown to the satisfaction of the Court that the witness is either dead or incapable of giving evidence or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable. It is for the prosecution to prove that the said circumstances mentioned exist and thereafter the evidence can be taken and used under Section 299, Cr PC. 6. So far as the second point of reference is concerned, it is clarified that as Section 299 has provided procedure for taking evidence in absence of accused, the condition or procedure mentioned therein has to be followed before relying upon the evidence. The requirement of the statutory provision cannot be dispensed with as a result of agreement between the parties. 7. With the aforesaid observations, the reference is disposed of and the learned Magistrate is directed to proceed in the light of the aforesaid observations. The records should be immediately sent down to the Court below.