Accused Against Whom Evidence Is Recorded U/S 299 CrPC May Admit Such Depositions After Appearance: J&K&L High Court

A Bench of Justice Mohd Yousuf Wani observed that the purpose of Section 299 CrPC is to preserve evidence against an accused who has absconded so that the testimony of witnesses is not lost due to death, incapacity, or inability to secure their presence later.

The Court observed,

“The object of the provisions of Section 299 of the Code is to preserve evidence as against an accused who has absconded and in respect of whom there is no immediate prospect of his arrest, so that the same is not allowed to get lost by reason of death, disability or inability to procure his presence without unreasonable delay, expense or inconvenience.”

The Court was hearing a petition challenging an order of the trial court whereby the prosecution had been permitted to recall witnesses who had already been examined during the trial in the absence of the petitioner when proceedings under Section 299 CrPC had been initiated against him.

Background:

The case arose out of an FIR registered for offences under Sections 8/15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 207 of the Motor Vehicles Act.

During investigation, three accused persons were charge-sheeted. Two of them were arrested and faced trial from the beginning, whereas the present petitioner could not be arrested as he had allegedly absconded and his whereabouts were not known.

In the final report, the investigating agency sought initiation of proceedings under Section 299 CrPC against the petitioner. The trial court framed charges against the co-accused and proceeded with the trial, examining several prosecution witnesses in the absence of the petitioner.

Subsequently, the petitioner surrendered before the trial court. After his appearance, he filed an application stating that he admitted the entire evidence of the prosecution witnesses already recorded during his absence and that he did not wish to recall them for cross-examination, as they had already been cross-examined by the counsel representing the co-accused.

The prosecution, however, moved an application seeking recall of the witnesses already examined so that they could be cross-examined specifically in relation to the petitioner. The trial court rejected the petitioner's application and allowed the prosecution's request for recalling witnesses, which led to the filing of the present petition before the High Court.

Court's Observations:

The Court examined the scheme and object of Section 299 CrPC, which allows a court to record the evidence of prosecution witnesses in the absence of an accused who has absconded and whose arrest is not immediately possible.

The Bench observed that the provision is intended to ensure preservation of evidence so that the testimony of witnesses does not get lost due to death, disability, disappearance, or other practical difficulties that may arise if the trial is delayed until the accused is apprehended.

Referring to the statutory provision, the Court noted that depositions recorded under Section 299 CrPC can subsequently be used against the accused during trial if the witness becomes unavailable due to death, incapacity, or inability to be produced without unreasonable delay or expense.

The Court observed that once such evidence has been recorded, an accused who later appears before the court has the option to either contest the evidence by seeking cross-examination of the witnesses or to admit the depositions already recorded.

In the present case, the petitioner had categorically admitted the depositions of the prosecution witnesses who had already been examined during his absence. Therefore, the Court held that allowing the prosecution to recall those witnesses would defeat the very purpose of Section 299 CrPC.

The Bench further observed that permitting recall of the witnesses despite the admission of their depositions would effectively grant the prosecution an opportunity to improve its case, which is not contemplated by the provision.

The Court emphasised that Section 299 CrPC operates as an exception to the general rule that evidence must be recorded in the presence of the accused or his legal representative. The exception is designed only to safeguard evidence against loss and not to provide an additional advantage to the prosecution.

The Court also referred to an earlier judgment of the High Court in Sonaullah Naik v. State (2013 (2) JKJ 403), where similar principles governing the operation of Section 299 CrPC were discussed.

The High Court held that once the petitioner had admitted the depositions of prosecution witnesses recorded during proceedings under Section 299 CrPC, the prosecution could not insist on recalling those witnesses merely to further strengthen its case.

Finding that the trial court had erred in allowing the prosecution's application for recalling witnesses, the Court set aside the impugned order. Accordingly, the petition was allowed and the order of the trial court permitting recall of prosecution witnesses was quashed.

Appearances:

Mr. Hakim Suhail Ishtiyaq, Advocate and Mr. Syed Haroon Rashid, Advocate for the Petitioner.

Mr. Zahid Noor, Government Advocate for the Respondent.

Case Title: Mohammad Yaqoob Beigh Vs Union Territory of J&K

Citation: 2026 LiveLaw (JKL) 102

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