The Jammu & Kashmir and Ladakh High Court has quashed a trial court’s invocation of Section 299 of the Criminal Procedure Code, 1973 in favor of a petitioner accused, holding that the criminal court must satisfy itself fully regarding the accused’s abscondence before applying that provision. The case is Mohammad Sidiq Lone vs Union Territory of Jammu & Kashmir & Others. A bench led by Justice Mohd Yousuf Wani found that the trial court had acted on only the Investigating Officer’s statement and a constable’s statement without sufficient proof that the accused had absconded and no immediate prospect of his arrest. The High Court set aside the trial court’s order dated December 12, 2022.
The Court emphasized that Section 299—which, under the new Bharatiya Nagarik Suraksha Sannhita (BNSS) corresponds to Section 335—cannot be used “casually” at the request of police or investigating officers. It made clear that the court must be satisfied of two things as preconditions: first, that the accused is indeed absconding; second, that there is no immediate prospect of his arrest. These conditions must be established before the court proceeds to record the evidence of prosecution witnesses in the accused’s absence under Section 299.
In the case at hand, because the trial court had not independently satisfied these prerequisites but had simply acted on the IO’s assertion and a constable, the invocation of Section 299 was held invalid. The High Court observed that allowing witness depositions to be recorded in the absence of the accused without these conditions being met undermines fundamental procedural safeguards.
Accordingly, the High Court directed the petitioner be permitted to surrender before the trial court, and clarified that after surrender, he would be at liberty to seek bail. The bail application should be considered expeditiously in accordance with law.
By setting aside the order, the High Court has reinforced the protection afforded to accused persons under criminal procedure law, ensuring that rights of presence and cross-examination are not circumvented lightly. The judgment warns against mechanical invocation of Section 299 merely because law enforcement requests it, rather than after judicial satisfaction of statutory requirements.
The ruling underscores that Section 299/335 is an exception to the general rule that evidence is recorded in the presence of the accused. It requires strict proof of abscondence and lack of arrest prospects before invocation. Recording evidence in the accused’s absence, in contravention of those conditions, is not permissible.
The case thereby reaffirms that trial courts must act with care, not on mere assertions of absconding, but only after being fully satisfied by evidence. It ensures that accused persons are not deprived of their legal rights without due process. The decision is likely to guide lower courts in how and when Section 299/335 can be invoked, providing clarity on the threshold of proof required for absconding accused prosecutions.
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