The Supreme Court has ruled that the testimony of a deceased witness recorded during the trial of co-accused can be relied upon against an absconding accused arrested later, provided the statutory requirements under Section 299 of the Code of Criminal Procedure are fulfilled.
Holding that a contrary interpretation would encourage accused persons to evade the criminal process until crucial witnesses become unavailable, the Court allowed the State of West Bengal’s appeals and restored the trial court’s order permitting the prosecution to rely on the deceased victim’s earlier testimony.
Case Details
- Case Title: The State of West Bengal v. Kader Khan
- Court: Supreme Court of India
- Bench: Justice Sanjay Karol and Justice Vipul M. Pancholi
- Judgment Date: 17 July 2026
- Citation: 2026 INSC 718
- Appeal: Criminal Appeal Nos. 1164–1166 of 2023.
Supreme Court Clarifies Scope of Section 299 CrPC
The judgment addresses an important question concerning the admissibility of evidence recorded in the absence of an absconding accused. The Court examined whether the deposition of a victim, who had testified during the trial of co-accused and subsequently died, could be used in the later trial of an accused who had remained absconding for several years.
Allowing the State’s appeals, the Supreme Court held that the High Court had adopted an unduly restrictive interpretation of Section 299 of the Code of Criminal Procedure.
According to the Court, the statute does not require a formal judicial order directing that evidence be recorded specifically against an absconding accused before such evidence can later be relied upon. Instead, what is material is whether the statutory conditions under Section 299 existed when the witness was examined.
Background of the Case
The prosecution originated from an FIR registered on 9 February 2012 following allegations of gang rape. According to the complaint, the victim was returning home from Tantra Disco Thek in Kolkata during the early hours of 5 February 2012 when she accepted an offer of a ride from one individual.
After entering the vehicle, several accused allegedly joined, prevented her from leaving, threatened her at gunpoint, gang-raped her, and later pushed her out of the moving vehicle near Exide House. The FIR invoked offences under the Indian Penal Code and the Arms Act.
Three accused were arrested shortly thereafter. However, two accused, including respondent Kader Khan, remained absconding despite the issuance of arrest warrants and proclamation proceedings.
Upon completion of the investigation, the police filed a charge sheet against the arrested accused while showing the respondent and another accused as absconders and indicating that a supplementary charge sheet would be filed after their arrest.
Split Trial and Recording of Evidence
During proceedings relating to bail, the Calcutta High Court directed that the trial be separated if the absconding accused were not arrested. Consequently, the trial proceeded only against the three arrested accused.
The victim gave detailed testimony between March and July 2013. During this period, she was extensively cross-examined by the accused who were facing trial. In total, the prosecution examined forty-five witnesses.
Unfortunately, after completing her testimony, the victim passed away on 13 March 2015.
The trial court subsequently convicted the three accused for gang rape, criminal conspiracy, causing hurt and criminal intimidation, sentencing them to ten years’ rigorous imprisonment.
Arrest of the Absconding Accused
The respondent and another absconding accused were eventually arrested on 30 September 2016, more than four years after proclamation proceedings had been initiated against them.
Following their arrest, the investigating agency filed a supplementary charge sheet and fresh charges were framed.
Since the victim had died before the respondent’s trial commenced, the prosecution moved an application under Section 33 of the Indian Evidence Act seeking permission to rely upon her earlier testimony recorded during the first trial.
The trial court allowed the application. However, the Calcutta High Court set aside that order, holding that Section 299 CrPC required the prosecution to obtain a specific direction from the trial court authorising recording of evidence against the absconding accused while he remained unavailable.
Issue Before the Supreme Court
The principal legal issue before the Supreme Court was whether the prosecution could rely upon the deposition of a deceased witness recorded during the earlier trial of co-accused in the subsequent trial of an accused who had deliberately absconded, even though no formal order had expressly recorded that the evidence was being taken against the absconding accused under Section 299 CrPC.
Interpretation of Section 299 CrPC
Justice Sanjay Karol, writing for the Bench, explained that the ordinary rule of criminal law requires witnesses to depose in the presence of the accused, enabling effective cross-examination.
However, Section 299 CrPC constitutes a statutory exception intended to prevent an accused from defeating the administration of justice merely by absconding.
The Court observed that Section 299 permits evidence to be recorded in the absence of an absconding accused where two conditions exist:
- First, the accused must have absconded.
- Second, there must be no immediate prospect of securing his arrest.
If the witness later dies, becomes incapable of giving evidence, cannot be found, or cannot reasonably be produced, the earlier deposition may be used against the accused after arrest.
No Mandatory Requirement of a Formal Judicial Order
Rejecting the High Court’s interpretation, the Supreme Court held that the statute nowhere mandates a formal order recording satisfaction of these conditions before evidence is led.
The Bench observed that the decisive consideration is whether the statutory requirements actually existed on the date when the witness testified.
The judgment states:
“There is no statutory requirement… mandating the formal passing of an order by the Magistrate concerned… What would be relevant is whether these two essentials stood established on the date of the deposition of the witness.”
The Court therefore concluded that procedural formalities cannot override the substantive purpose of Section 299 where its essential conditions are demonstrably satisfied.
Reliance on Earlier Supreme Court Decisions
The Court extensively relied upon Nirmal Singh v. State of Haryana and CBI v. Abu Salem Ansari.
Referring to Nirmal Singh, the Bench reiterated that Section 299 is an exception to the general evidentiary rule contained in Section 33 of the Indian Evidence Act. Since the accused does not receive an opportunity to cross-examine the witness, the statutory preconditions must be strictly established before such evidence can be admitted.
However, the Court clarified that Nirmal Singh did not require a formal judicial order. It merely required proof that the accused had absconded and that there was no immediate prospect of arrest.
The Court also relied upon CBI v. Abu Salem Ansari, observing that the earlier decision expressly recognised that evidence recorded in the first trial may be used in a later split-up trial if the conditions under Section 299 are fulfilled and the witness has become unavailable.
Approval of High Court Precedents
The Supreme Court also referred to decisions of the High Courts of Chhattisgarh, Madras and Delhi that had adopted a similar interpretation.
These judgments recognised that permitting absconding accused to escape the consequences of evidence merely because they evaded arrest until witnesses died would seriously undermine criminal justice.
The Court found these decisions consistent with the object underlying Section 299 and endorsed their reasoning.
Supreme Court Warns Against Rewarding Absconding Accused
One of the strongest observations in the judgment concerns the consequences of adopting the interpretation advanced by the respondent.
The Court observed that if Section 299 were interpreted narrowly, accused persons could intentionally remain absconding until crucial witnesses died or became unavailable, thereby frustrating criminal prosecutions.
The Bench observed:
“The purported intent is to ensure evidence against an accused is preserved, where he has deliberately absconded from trial. This Court cannot give an interpretation to this Section, which would defeat the very purpose behind it.”
The Court further noted that prosecutors cannot realistically predict during every trial whether an absconding accused will remain unavailable until witnesses die, making it unreasonable to insist upon a formal application in every such case.
Findings on Facts
Applying the legal principles to the present case, the Supreme Court found that both statutory conditions under Section 299 had clearly been established.
Proclamation proceedings had already been initiated against the respondent in April 2012.
The charge sheet filed in May 2012 specifically described him as absconding.
The victim’s deposition was recorded between March and July 2013.
The respondent was not arrested until September 2016, demonstrating that there was no immediate prospect of his apprehension when the evidence was recorded.
By the time his separate trial commenced, the victim had already passed away in March 2015.
Accordingly, the Court held that every statutory requirement contemplated under Section 299 stood satisfied in the present case.
Final Directions
The Supreme Court allowed the criminal appeals filed by the State of West Bengal.
The judgment of the Calcutta High Court dated 6 May 2022 was set aside, thereby restoring the trial court’s order permitting the prosecution to rely upon the deceased victim’s earlier testimony in the respondent’s trial.
Pending applications were also disposed of.
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