Section 335 BNSS 2023: Record of Evidence in Absence of Accused
Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the recording of prosecution evidence when an accused person has absconded and there is no immediate prospect of arrest. It also provides a special procedure for recording evidence where a serious offence has been committed by an unknown person.
Law: Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023)
Provision: Section 335 - Record of evidence in absence of accused
In force: 1 July 2024
Earlier corresponding provision: Section 299 of the Code of Criminal Procedure, 1973.
Text of Section 335 BNSS
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 and Scope of Section 335
Section 335 creates a limited exception to the ordinary rule that evidence in a criminal trial is recorded in the presence of the accused. The provision is designed to prevent prosecution evidence from being lost merely because an accused has absconded or because the identity of the offender is not yet known.
Section 335(1): Accused has absconded
Under sub-section (1), the Court may record prosecution evidence in the absence of the accused only when it is proved that the accused has absconded and there is no immediate prospect of arresting that person. The power is therefore conditional and should not be treated as an automatic substitute for recording evidence in the ordinary manner.
A deposition recorded under sub-section (1) does not become freely admissible merely because it was recorded during the accused's absence. After the accused is arrested, that deposition may be used in the inquiry or trial only if the deponent:
- 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.
Section 335(2): Serious offence by unknown offender
Sub-section (2) applies where an offence punishable with death or imprisonment for life appears to have been committed by an unknown person or persons. In such a case, the High Court or the Sessions Judge may direct a Magistrate of the first class to hold an inquiry and examine witnesses who can give evidence concerning the offence.
The depositions recorded in that inquiry may later be used against a person who is subsequently accused, but only when the deponent is dead, incapable of giving evidence, or is beyond the limits of India.
Conditions at a Glance
| Situation | Who may act | When recorded evidence may later be used |
|---|---|---|
| Known accused has absconded and there is no immediate prospect of arrest | Court competent to try or commit the person for trial | If the deponent is dead, incapable, cannot be found, or cannot reasonably be produced without excessive delay, expense or inconvenience |
| Offence punishable with death or life imprisonment committed by unknown person or persons | High Court or Sessions Judge may direct a Magistrate of the first class to hold an inquiry | If the deponent is dead, incapable of giving evidence, or beyond the limits of India |
Section 335 BNSS and Section 299 CrPC
Section 335 BNSS substantially carries forward the subject matter previously dealt with by Section 299 of the Code of Criminal Procedure, 1973. The BNSS came into force on 1 July 2024. For proceedings or legal issues involving the transition from the CrPC to the BNSS, the applicable saving and transitional provisions should also be examined on the facts of the case.
Practical point: The preconditions in Section 335 are important because evidence recorded without the accused being present is an exceptional procedure. The Court should have a proper basis for concluding that the statutory conditions are satisfied before resorting to it.
Official Sources
For the authoritative text and current official publication of the law, refer to India Code - Bharatiya Nagarik Suraksha Sanhita, 2023 and the Ministry of Home Affairs - New Criminal Laws.
Related BNSS Sections
Section 335 appears in the group of provisions dealing with evidence and general procedural matters. The immediately connected provisions include Section 334 on proof of previous conviction or acquittal and Section 336 on evidence of public servants, experts and police officers in certain cases.