CrPC Section 299 and BNSS Section 335: Record of Evidence in Absence of Accused
Section 299 of the Code of Criminal Procedure, 1973 (CrPC), permits a court to record prosecution evidence when an accused person has absconded and there is no immediate prospect of arrest. Its corresponding provision is Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which came into force on 1 July 2024.
Meaning and purpose of the provision
Ordinarily, evidence is taken in the presence of the accused or their advocate, allowing the defence to test the testimony. Section 299 CrPC and Section 335 BNSS create a limited exception to preserve evidence where an accused has absconded or, in a serious offence, the offender is not yet known. Recording a deposition in advance does not automatically make it admissible at a later trial: the statutory conditions must also be satisfied.
Section 299(1) CrPC and Section 335(1) BNSS: Absconding accused
Where the court is satisfied that an accused person has absconded and there is no immediate prospect of arrest, the court competent to try the case or commit it for trial may examine prosecution witnesses and record their depositions in the accused person's absence.
After the accused is arrested, such a recorded deposition may be used in the inquiry or trial for the charged offence only if the witness:
- has died;
- is incapable of giving evidence;
- cannot be found; or
- cannot be brought before the court without unreasonable delay, expense or inconvenience in the circumstances.
The prosecution must establish the necessary statutory foundation. Mere non-appearance of an accused does not, by itself, establish both absconding and the absence of an immediate prospect of arrest.
Section 299(2) CrPC and Section 335(2) BNSS: Unknown offender in a grave offence
Where an offence punishable with death or imprisonment for life appears to have been committed by an unknown person or persons, the High Court or Sessions Judge may direct a first-class Magistrate to inquire into the matter and examine witnesses who can give relevant evidence.
A deposition recorded in this manner may later be used against a person subsequently accused of that offence if the witness has died, is incapable of giving evidence, or is beyond the limits of India. These conditions differ from those in sub-section (1) and should not be treated as interchangeable.
Conditions and safeguards
- Judicial satisfaction: The court must have a basis for concluding that the specific conditions for recording evidence in absence are met.
- Competent court: Evidence under sub-section (1) must be recorded by a court competent to try or commit the matter for trial.
- Proper record: Witness depositions should be formally recorded in accordance with the applicable procedure.
- Separate admissibility test: When a deposition is later tendered, the court must assess whether the statutory conditions for its use have been proved.
- Fair-trial considerations: Because the accused was absent when the testimony was first taken, the exception is construed in light of procedural safeguards and the right to a fair trial.
CrPC 299 and BNSS 335 at a glance
| Issue | CrPC Section 299 | BNSS Section 335 |
|---|---|---|
| Subject | Record of evidence in absence of accused | Record of evidence in absence of accused |
| Absconding accused | Sub-section (1) | Sub-section (1) |
| Unknown offender in death/life-imprisonment offence | Sub-section (2) | Sub-section (2) |
| General legal status | Earlier law; saved pending proceedings may remain governed by it | Corresponding current provision from 1 July 2024 |
Uttar Pradesh state amendment and legislative history
The earlier CrPC text included a Uttar Pradesh amendment under Uttar Pradesh Act 16 of 1976, Section 7, expanding the reference to the competent court to include a court empowered to commit the accused for trial. The central CrPC was subsequently amended by Act 45 of 1978, Section 23, effective 18 December 1978, to include the words "or commit for trial". The corresponding BNSS provision expressly includes a court competent to try or commit for trial. The effect of any state-specific provision in a saved proceeding should be assessed in its legal and temporal context.
Related rules: Trial in absence and procedural transition
BNSS Section 356 separately addresses inquiry, trial or judgment in absentia of a proclaimed offender and contains its own procedural requirements. It should not be confused with the limited power to preserve witness depositions under BNSS Section 335. BNSS Section 531 contains the repeal and savings rules relevant to the transition from the CrPC.
Frequently asked questions
What is the BNSS equivalent of CrPC Section 299?
Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is the corresponding provision.
Can a court record evidence without an accused who has absconded?
Yes, where the court is competent and the statutory conditions of absconding and no immediate prospect of arrest are established.
Is evidence recorded in absence automatically usable at trial?
No. Later use of a deposition is subject to the specific witness-unavailability conditions in the relevant sub-section.
Does the CrPC still apply to any proceedings?
Yes. BNSS Section 531 contains savings for specified proceedings pending immediately before commencement of the BNSS.
Official legislation and references
For authoritative statutory wording, consult the Bureau of Police Research and Development: Bharatiya Nagarik Suraksha Sanhita, 2023 (PDF) and the India Code legislative database. Refer to Sections 335, 356 and 531 of the BNSS and Section 299 of the CrPC as relevant.