Section 335 – 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 unreasonable.

(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 of India.

Meaning of Section 335

Section 335 creates a limited mechanism for preserving witness evidence where the accused is unavailable. The provision recognises that an accused may abscond and that waiting for their arrest may result in the loss of important evidence, particularly where witnesses may subsequently die, become incapable of giving evidence, become untraceable, or their attendance may become unreasonably difficult.

The section therefore permits the Court to record evidence in the absence of the accused, subject to the conditions prescribed by the provision.

Essential Requirements

1. The accused must have absconded

The first requirement under Section 335(1) is that it must be proved that the accused person has absconded.

Mere absence from Court is not, by itself, sufficient. The statutory requirement of absconding must be established.

2. There must be no immediate prospect of arrest

The Court must also be satisfied that there is no immediate prospect of arresting the accused.

Both conditions are therefore significant: the accused must have absconded and there must be no immediate prospect of arrest.

3. The Court must be competent to try or commit the accused for trial

The power is available to the Court competent to try the accused or to commit the accused for trial for the offence concerned.

4. Prosecution witnesses may be examined

The Court may examine witnesses produced on behalf of the prosecution and record their depositions even though the accused is absent.

5. The recorded deposition may subsequently be used as evidence

The deposition may, after the arrest of the accused, be given in evidence against him during the inquiry or trial if the witness:

is dead;
is incapable of giving evidence;
cannot be found; or
cannot be produced without unreasonable delay, expense or inconvenience in the circumstances of the case.

Thus, recording the evidence does not mean that the deposition will automatically be used against the accused in every case.

Procedure under Section 335(1)

The basic procedure can be understood as follows:

The accused absconds.
It is proved that there is no immediate prospect of arresting the accused.
The competent Court may proceed to examine prosecution witnesses in the absence of the accused.
The Court records their depositions.
If the accused is subsequently arrested, the recorded deposition may be used in the inquiry or trial.
Such use is permissible where the witness is dead, incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense or inconvenience.

Section 335(2): Offence Committed by Unknown Person

Sub-section (2) deals with a different situation.

Where it appears that an offence punishable with death or imprisonment for life has been committed by a person or persons who are unknown, the High Court or Sessions Judge may direct a Magistrate of the first class to conduct an inquiry.

The Magistrate may examine witnesses who are capable of giving evidence concerning the offence and record their depositions.

These depositions may subsequently be used against a person who is later accused of the offence if the witness:

is dead;
is incapable of giving evidence; or
is beyond the limits of India.

Object and Purpose

The primary purpose of Section 335 is to preserve important witness evidence when the accused is unavailable.

Without such a mechanism, a prosecution could face serious difficulties if a material witness becomes unavailable before the accused is arrested or before the trial can proceed. The provision therefore seeks to prevent the possible loss of evidence while maintaining specific conditions for its later use.

Important Distinction

Absence of Accused and Ordinary Trial

Section 335 does not establish a general rule that every criminal trial can proceed in the absence of an accused.

The provision specifically concerns situations where the accused has absconded and there is no immediate prospect of arrest. It is a specific statutory mechanism for recording evidence in such circumstances.

Recording Evidence and Using Evidence

There is also a distinction between recording a deposition and subsequently using that deposition against the accused.

The deposition may be used after the accused is arrested only when the conditions relating to the unavailability of the witness specified in Section 335 are satisfied.

BNSS and CrPC

Section 335 of the BNSS substantially carries forward the rule contained in Section 299 of the Code of Criminal Procedure, 1973 (CrPC) relating to recording evidence in the absence of an accused.

The provision therefore continues the earlier procedural mechanism, subject to the framework of the BNSS.

Relationship with BNS and BSA

Section 335 is a procedural provision under the BNSS. It does not create a criminal offence.

The Bharatiya Nyaya Sanhita, 2023 (BNS) determines substantive criminal offences, while the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence. Section 335 of the BNSS specifically provides the procedural mechanism for recording and, in prescribed circumstances, subsequently using depositions recorded in the absence of the accused.

Example

Suppose A is accused of a serious offence and absconds before the prosecution witnesses can be examined. The Court is satisfied that A has absconded and that there is no immediate prospect of his arrest.

The Court may examine the prosecution witnesses and record their depositions in A’s absence. If A is later arrested but a material witness has died or cannot be found, the deposition recorded earlier may be used in the inquiry or trial subject to Section 335.

Topic at a Glance

Section: 335, BNSS, 2023
Subject: Record of evidence in absence of accused
Main requirement: The accused must have absconded and there must be no immediate prospect of arrest.
Authority: Competent Court under sub-section (1)
Evidence: Prosecution witnesses may be examined and their depositions recorded.
Later use: Permitted in the circumstances specified by the section.
Unknown offender cases: High Court or Sessions Judge may direct a Magistrate of the first class to hold an inquiry under sub-section (2).
Corresponding CrPC provision: Section 299, CrPC, 1973.

Quick Revision

Section 335 BNSS deals with recording evidence in the absence of an accused.
The accused must have absconded.
There must be no immediate prospect of arrest.
The competent Court may examine prosecution witnesses and record their depositions.
The deposition can subsequently be used if the witness is dead, incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense or inconvenience.
Sub-section (2) concerns offences punishable with death or imprisonment for life committed by unknown persons.
The High Court or Sessions Judge may direct a Magistrate of the first class to hold an inquiry in such cases.
Section 335 substantially corresponds to Section 299 of the CrPC.

ALSO READ: Section 334 – Previous conviction or acquittal how proved

Conclusion

Section 335 BNSS provides a safeguard against the loss of prosecution evidence when an accused has absconded and cannot be arrested in the immediate future. At the same time, its application is subject to specific statutory conditions, ensuring that evidence recorded in the accused’s absence is not treated as automatically admissible in every circumstance.

Join Lexibal’s WhatsApp Community for latest updates.

Author

Section 335 – Record of Evidence in Absence of Accused

Introduction

Statutory Provision