Section 335 of BNSS

Source: Supreme Court

Why in News? 

A Bench of Justice J.B. Pardiwala and Justice K. Vinod Chandran, in Mahendra Singh v. The State of Chhattisgarh (2026), set aside a murder conviction on the ground that testimony recorded in an earlier trial against a co-accused cannot be used against an absconding accused in his subsequent trial, unless an order under Section 299 CrPC/Section 335 BNSS was passed establishing the two jurisdictional facts — that the accused was absconding, and that there was no immediate prospect of arresting him. 

What was the Background of Mahendra Singh v. The State of Chhattisgarh (2026) Case? 

• Two accused were charged with murder in 1999. The appellant allegedly sat on the victim's chest and strangulated him, while the co-accused exhorted and threatened passersby. 
• The appellant absconded at that stage, while the co-accused stood trial and was acquitted. 
• The appellant was arrested in 2017, more than 18 years after the incident. 
• By the time trial against the appellant commenced, the key eyewitness (PW-1) had died. 
• The Trial Court and the High Court relied on PW-1's testimony as recorded in the earlier trial against the co-accused, and convicted the appellant on that basis. 
• No order under Section 299 CrPC had been passed during the 1999 trial recording a finding that the appellant was absconding and could not be arrested. 
• Aggrieved, the appellant approached the Supreme Court. 

What were the Court's Observations? 

• On the requirement of a formal order under Section 299 CrPC: The Court held that the flight of the accused and the impossibility of his immediate apprehension must be urged before, and proved to the satisfaction of, the trial court. Only where an order is passed recording proof of both jurisdictional facts can the testimony of a witness recorded at that stage later be relied upon once that witness cannot be produced. 
• On the absence of such an order in the present case: The Court found that no order under Section 299 CrPC was passed in 1999 at either the committal stage or the commencement of trial, establishing that the appellant was absconding and that there was no immediate prospect of his arrest. 
• On the effect of this omission: Since no such order existed in the earlier trial against the co-accused, the Court held that the prosecution's case against the appellant failed, and set aside his conviction, acquitting him of the charges. 
• On the conflicting view in Kader Khan: The Court noted a contrary view taken shortly before by a co-ordinate Bench (Justice Sanjay Karol) in State of West Bengal v. Kader Khan, (2026). In Kader Khan, it was held that Section 299 CrPC contains no statutory requirement of a formal order recording that the two jurisdictional facts stood satisfied before the witness deposed; what matters is whether those facts were in fact established on the date of deposition. Kader Khan also clarified that Section 299 is ordinarily invoked only once a witness is unavailable — dead, incapable of deposing, untraceable, or unable to be produced without unreasonable delay or expense — since a living, available witness can simply be examined afresh in the subsequent trial. 

What is Section 335 BNSS? 

Section 335 BNSS – Record of Evidence in Absence of Accused: 

• Sub-section (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. 
• 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, provided 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 unreasonable. 
• Sub-section (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. 
• Any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, provided the deponent is dead, or incapable of giving evidence, or beyond the limits of India.