Conviction solely based on evidence recorded in absentia under Section 299 CrPC without fair trial is unsustainable.

The applicant was charged under Sections 363 and 366 of the IPC for an incident occurring in 2009. After being released on bail and having charges framed in 2018, the applicant absconded during the trial.

Invoking Section 299 of the Code of Criminal Procedure (CrPC), the trial court recorded prosecution evidence in the applicant's absence.

On 30.08.2025, the 4th Additional Sessions Judge, Amreli, convicted the applicant and sentenced him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh despite his continued absence.

Upon his subsequent arrest with a conviction warrant, the applicant filed for suspension of sentence, challenging the legality of a conviction recorded without an opportunity for cross-examination or a statement under Section 313 of the CrPC.

Section 299 of the CrPC, which permits recording and preserving evidence in the absence of an absconding accused, and Section 353(6) of the CrPC, regarding the presence of the accused during judgment.

Principle of fair trial and the right to cross-examination under Section 137 of the Evidence Act, as elucidated in Arunaben @ Anitaben v. State of Gujarat (2025), which held that Section 299 is for preservation of evidence only and does not authorize conviction in absentia.

The High Court reasoned that the purpose of Section 299 of the CrPC is strictly limited to the "preservation of evidence" to prevent loss of testimony due to the passage of time.

While Section 353(6) allows for an acquittal in the absence of an accused if no prima facie case is made out, it does not empower a court to convict.

The court found that because the applicant was absconding, he was denied the "acid test" of cross-examination and the mandatory requirement of explaining incriminating circumstances under Section 313 of the CrPC.

Moving straight to conviction upon recording evidence under Section 299 is a misinterpretation of the statute and a violation of criminal jurisprudence, as the accused must be given a chance to recall available witnesses and defend himself once apprehended.

The judgment and order of conviction dated 30.08.2025 were quashed and set aside. The court remanded the matter back for a de novo trial (decision afresh), directing the trial court to allow the accused to recall and cross-examine available prosecution witnesses and complete the trial within six months. The application for suspension of sentence was disposed of as the conviction itself was set aside.