A Single Bench of Justice Mohammad Yousuf Wani has held that the evidence recorded at the back of absconding accused pursuant to Sec 299 CrPC (Now 325 BBSS) initiated against him is preserved for such accused and can be admitted without recall, preventing prosecution from improving its case.
The case involves a 2022 FIR related to NDPS against three accused persons, two of whom were arrested immediately except the petitioner. The police presented a chargesheet in February 2023 with the prayer for initiating Sec 299 CrPC proceedings against the petitioner/accused. The trial court framed formal charges against the two co-accused for the alleged commission of offences punishable under Sections 8/15 and 29 of the NDPS Act, 207 of the MV Act after hearing both the prosecution and the defense on the issue. The ld. Trial Court directed the prosecution to produce the evidence in the case upon pleading not guilty by the co-accused after the contents of the charge memos came to be individually read over and explained to them. The ld. Trial Court simultaneously issued a non-bailable warrant of arrest against the petitioner and also initiated the proceedings in terms of the provisions of Sections 82 and 83 of the Code against him. The petitioner-accused surrendered before the ld. Trial Court on 04.03.2025. The petitioner came to be formally charged in the case on 04.04.2025, who also pleaded not guilty. Thereafter, the petitioner-accused submitted an application before the ld. Trial Court stating therein that he admits the entire evidence of the prosecution witnesses who came to be examined at the trial in his absence during the subsistence of the proceedings under Section 299 of the Code against him.It was further pleaded by the petitioner in the said application that he even does not want the recalling of the examined prosecution witnesses for cross-examination thereof as the said witnesses have already been properly cross-examined by the learned counsel for the co-accused 1 and 2. An application also came to be filed by the prosecution before the ld. Trial Court with the prayer for recalling of the prosecution witnesses 1 to 10, who had been already examined in the absence of the petitioner, for their cross-examination to the extent of the petitioner-accused. 

The ld. Trial Court, vide a common order rejected/dismissed the application of the petitioner-accused while allowing the application of the prosecution for recalling of the already examined PWs 1 to 10.

The court while setting aside the order of trial court held that As per the provisions of Section 299 of the Code, in case any of the examined prosecution witnesses in the instant case would have died or been rendered disabled or incapable of giving evidence without an amount of delay, expense or inconvenience or incapable of being traced then his deposition was capable of being read in evidence against the present petitioner upon his facing trial. As a necessary corollary, such an accused in respect of whom the proceedings under Section 299 of the Code have been initiated, has the discretion to admit the deposition of any of the prosecution witnesses recorded at the trial prior to his appearance at the trial. Allowing the prosecution to recall the already examined witnesses despite the admission of their depositions will tantamount to granting undue concession to the prosecution for making an attempt to improve its case, besides being against the logic and object of the provisions of Section 299 of the Code. The provisions of Section 299 of the Code are in the form of an exception to the general rule that evidence needs to be recorded in the presence of the accused or his legal representative.

The court relied on its precedent in Sonaullah Naik vs. State (2013) 2 JKJ 403, affirming surrendered absconders can waive cross-examination rights for Section 299 (erstwhile Section 512 CrPC) statements, making them fully admissible without fresh examination.