S.335 BNSS Proceedings Require Judicial Proof of Absconding, Not Just IO's Request: J&K and Ladakh High Court - 2025-08-13

Legal Awareness & Information.

J&K High Court Quashes 'Absconder' Proceedings, Sets Strict Standard for Trial Courts

SRINAGAR – In a significant ruling on criminal procedure, the Jammu and Kashmir and Ladakh High Court has quashed an order that initiated proceedings against an accused in his absence, emphasizing that such measures cannot be taken "on the mere asking" of an Investigating Officer (IO). Justice Mohd Yousuf Wani held that a trial court must independently satisfy itself with concrete proof that the accused has absconded and cannot be arrested before invoking provisions to record evidence in their absence.

Case Background

The case, Mohammad Sidiq Lone vs Union Territory of J and K , involved a petition filed by Mohammad Sidiq Lone challenging an order by the Principal Sessions Judge, Kupwara. Lone was implicated in a 2022 drug case (FIR No. 72/2022 under the NDPS Act) based solely on the disclosure statement of a co-accused.

When the police filed the final report, the IO requested the trial court to initiate proceedings against Lone under Section 299 of the Code of Criminal Procedure (CrPC), 1973 (now Section 335 of the Bharatiya Nagarik Suraksha Sanhita, BNSS), claiming he was absconding. The trial court granted the request on December 12, 2022, allowing the prosecution to examine witnesses in Lone's absence.

Petitioner's Arguments

Appearing before the High Court, counsel for the petitioner argued that the trial court’s order was illegal and passed without procedural diligence. The key arguments were: * The order was based solely on the IO's request without the court recording its own satisfaction based on evidence, such as a proclamation or arrest warrant. * The petitioner was falsely implicated and was never made aware of his involvement during the investigation. * Initiating such proceedings without proper proof would have adverse effects on the petitioner's credibility and deny him the right to defend himself.

High Court’s Scrutiny and Precedent

Justice Wani, upon reviewing the trial court's order, agreed with the petitioner. The judgment noted that the lower court had failed in its duty to verify the claim of absconding. The High Court cited the Supreme Court’s landmark ruling in Jayendra Vishnu Thakur vs. State of Maharashtra and Anr (2009) , which established that the conditions for invoking Section 299 CrPC must be strictly construed, as it is an exception to the fundamental right of an accused to confront witnesses.

The court highlighted the stringent requirement of the law, quoting the provision itself:

" If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court... may in his absence examine the witnesses... "

Justice Wani emphasized that the word "proved" requires a higher standard than the "reason to believe" needed for issuing a proclamation. A court must be fully satisfied that the accused is intentionally avoiding arrest and cannot be found.

A Caution to Lower Courts

In a broader observation, the High Court expressed concern over a growing trend where criminal courts initiate such proceedings mechanically at the request of police officers.

"The criminal courts use to initiate proceedings against the accused persons... on the mere asking of the SHO/IO concerned. In most of the said cases, the Investigating Officers do not take any pains to proceed in accordance with the law... and for the sake of their convenience prefer to make requests..." the judgment stated.

The court warned that this practice could lead to "serious repercussions," especially if witnesses recorded in the accused's absence later become unavailable for cross-examination, thereby causing a grave miscarriage of justice.

Final Decision and Directions

The High Court quashed the trial court's order dated December 12, 2022, which had initiated proceedings against Mohammad Sidiq Lone under Section 299 CrPC.

The petitioner was directed to surrender before the trial court, which will now deal with him in accordance with the law. The court also clarified that Lone is at liberty to apply for bail, and the trial court must consider any such application expeditiously. The ruling serves as a crucial reminder to the subordinate judiciary to exercise caution and diligence before stripping an accused of their right to participate in their own trial.