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2026 INSC 718 • Supreme Court of India

State of West Bengal v. Kader Khan

“A Deceased Victim's Testimony Can Be Used Against an Absconding Accused Later Arrested: Section 299 CrPC Needs No Separate Order Before She Deposes”

17 July 2026Justice Sanjay Karol, Justice Vipul M. Pancholi
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TL;DR

In a gang-rape case where the victim died in 2015 after completing her testimony in the trial of three co-accused, the Supreme Court held that her deposition can be used under Section 299(1) of the CrPC against the respondent, who absconded and was arrested only in 2016. The Court held that the provision requires two facts to be established as of the date the witness deposes (that the accused has absconded and that there is no immediate prospect of arresting him) and does not require a formal order of the Magistrate recording this before the witness deposes, nor an application by the prosecution in the first trial. It set aside the Calcutta High Court order dated 06.05.2022 in C.R.R. 3012 of 2018, which had overturned the Trial Court's order admitting the deposition.

The Bottom Line

An accused who absconds cannot benefit from the death of a witness whose evidence was recorded in the earlier trial of co-accused. Section 299(1) CrPC (now Section 335 of the BNSS, 2023) allows that evidence to be used against him once he is arrested, if the pre-conditions existed when the witness deposed and the deponent is now dead, incapable or untraceable. The prosecution need not move an application in the first trial as a matter of rule.

Case Timeline

The journey from FIR to Supreme Court verdict

filing
9 Feb 2012

FIR Registered

FIR No. 29/2012 was registered against five accused under Sections 376/223/506/34 IPC and Sections 25(ii)(a) and 27 of the Arms Act, 1959.

order
12 Apr 2012

Proclamation Issued Against Absconders

After a warrant of arrest on 05.03.2012, proclamation was issued against the respondent and Md. Ali Khan; notices were affixed on 12.04.2012 and 16.04.2012.

filing
10 May 2012

Chargesheet Against Three Apprehended Accused

The chargesheet showed the respondent and Md. Ali Khan as absconding and sought leave to file a supplementary chargesheet.

hearing
13 Mar 2013

Victim Begins Deposition

The victim deposed on multiple dates from 13.03.2013 to 03.07.2013, with extensive cross-examination by the accused. The trial had been split on 22.01.2013.

event
13 Mar 2015

Death of the Victim

The victim passed away after her testimony had been completed.

judgment
10 Dec 2015

Three Accused Convicted

The Trial Court convicted the three apprehended accused and sentenced them to ten years of rigorous imprisonment.

arrest
30 Sept 2016

Respondent Arrested

The respondent and Md. Ali Khan were arrested; a supplementary chargesheet was filed on 24.11.2016.

order
5 Sept 2018

Trial Court Admits Earlier Deposition

The Trial Court allowed the prosecution's application dated 20.04.2018 to admit the deceased victim's earlier deposition.

judgment
6 May 2022

High Court Sets Aside Trial Court Order

The Calcutta High Court allowed C.R.R. No. 3012 of 2018 and set aside the order dated 05.09.2018.

judgment
17 Jul 2026

Supreme Court Allows State Appeals

The Supreme Court set aside the High Court order.

The Story

FIR No. 29/2012 was registered on 09.02.2012 under Sections 376/223/506/34 of the IPC and Sections 25(ii)(a) and 27 of the Arms Act, 1959 against five accused, including the respondent Kader Khan, on a written complaint. The complaint stated that on 05.02.2012 the victim, returning home from a Kolkata disco at around 12:15 am, accepted an offer from one Lavi Gidwani to drop her home; the accused got into the car, refused to let her out, threatened and gang-raped her at gunpoint, and later pushed her out of the running car near the crossing of Exide House.

On 18.02.2012 three accused (Nishad Alam, Sumit Bajaj and Md. Nasir Khan) were apprehended. The respondent and Md. Ali Khan could not be apprehended. A warrant of arrest was issued by the C.M.M., Kolkata on 05.03.2012, a proclamation was issued on 12.04.2012 and proclamation notices were affixed on 12.04.2012 and 16.04.2012. A chargesheet was filed on 10.05.2012 against the three apprehended accused under Sections 376(2)(g), 323 and 506 IPC, showing the respondent and Md. Ali Khan as absconding. The Calcutta High Court, while considering bail applications, directed that the trial be split if the absconders were not arrested, and the trial was segregated on 22.01.2013. Charges were framed on 19.02.2013.

The victim deposed on multiple dates between 13.03.2013 and 03.07.2013 and was extensively cross-examined; 45 witnesses were examined in all. She died on 13.03.2015. By judgment dated 10.12.2015 the Trial Court convicted the three apprehended accused and sentenced them to ten years of rigorous imprisonment. The respondent and Md. Ali Khan were arrested on 30.09.2016, a supplementary chargesheet was filed on 24.11.2016, and charges were framed.

In that trial, the prosecution applied on 20.04.2018 under Section 33 of the Indian Evidence Act, 1872 for admission of the deceased victim's earlier deposition. The Trial Court allowed this on 05.09.2018. The respondent's revision (C.R.R. No. 3012 of 2018) succeeded: the Calcutta High Court on 06.05.2022 held that Section 299 CrPC casts an unambiguous duty on the prosecution to obtain a direction from the Trial Court that evidence may also be recorded against the absconder, and that the victim's earlier deposition could not be admitted. The State appealed.

Legal Issues

Click each question to reveal the Supreme Court's answer

1Question

Whether, to use a witness's deposition recorded in the trial of co-accused against an absconding accused who is later arrested, the prosecution must obtain a direction or order under Section 299 CrPC before the witness deposes?

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1SC Answer

No. The Court held there is no statutory requirement mandating the formal passing of an order by the Magistrate recording that the two facts (the accused has absconded; there is no immediate prospect of arresting him) have been complied with before the witness deposes. What is relevant is whether the two essentials stood established on the date of the deposition.

The High Court's view that a prior direction was necessary was held to be a restrictive reading contrary to the purpose of Section 299(1).

2Question

Whether the prosecution must move an application in the first trial, as a rule, whenever an accused is absconding?

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2SC Answer

No. The Court held the prosecuting agency cannot be expected to move an application in the first trial in every case where the accused is absconding, anticipating that the witness may not be available by the time the accused is apprehended. The question of using depositions arises only when the deponent is no longer available.

The text of Section 299(1) makes no reference to the stage at which it may be invoked.

3Question

Whether the conditions of Section 299(1) were satisfied on the facts?

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3SC Answer

Yes. Proclamation was issued on 12.04.2012, the chargesheet of 10.05.2012 showed the respondent as absconding, no challenge was laid to those facts, there was no prospect of his being apprehended soon when the victim deposed (13.03.2013 to 03.07.2013), he was arrested only on 30.09.2016, and the victim had died on 13.03.2015.

The two pre-conditions existed on the date of deposition and the deponent was dead.

Arguments

The battle of arguments before the Supreme Court

Petitioner

Vihaan Kumar

1

Section 299(1) is a settled exception and High Courts have applied it consistently

The State argued, relying on Nirmal Singh v. State of Haryana and CBI v. Abu Salem Ansari, that evidence recorded in the earlier trial of co-accused can be used against an absconder on arrest if the conditions are met, and that this interpretation had been followed by various High Courts. The Court records that the question of transfer of depositions arises only when the deponent is no longer available.

Section 299 CrPCNirmal Singh v. State of Haryana, (2000) 4 SCC 41CBI v. Abu Salem Ansari, (2011) 4 SCC 426

Respondent

State of Haryana

1

Section 299 imposes a duty on the prosecution to obtain a direction from the Trial Court

The respondent supported the High Court's reasoning that the words of Section 299 CrPC cast an unambiguous duty on the prosecuting agency to obtain a direction from the Trial Court that evidence may also be recorded against the absconder, and that the victim's deposition in the earlier trial is therefore inadmissible in the subsequent trial. The judgment also records the general rule that a witness must be examined in the presence of the accused.

Section 299 CrPCSection 33 Indian Evidence Act, 1872

Court's Analysis

How the Court reasoned its decision

The Court began with the general rule that a witness must be examined in the presence of the accused and evidence in one trial cannot be used against an accused in another, and described Section 299 CrPC as a departure from it. It relied on Nirmal Singh v. State of Haryana, which treats Section 299 as an exception to Section 33 of the Evidence Act that must be strictly complied with, and held that two facts must be established before the deposition: that the accused is absconding and that there is no immediate prospect of arrest. The Court found no statutory requirement of a formal order recording this before the witness deposes. It read CBI v. Abu Salem Ansari as permitting earlier evidence to be used on an application in the subsequent trial, subject to the conditions precedent, and rejected the High Court's reading of that decision. It cited decisions of the Chhattisgarh, Madras and Delhi High Courts (Farida alias Farid Ahmed, Abdul Aziz, and Afzal) which applied the provision similarly. The Court reasoned that a restrictive view would be against the intent of Section 299(1), which is to preserve evidence against an accused who has deliberately absconded, that the text does not limit the stage at which the Section may be invoked, that a contrary reading could prompt accused persons to abscond and wait for the witness to die, and noted that the Legislature made no change in the corresponding Section 335 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Applying this to the facts, the Court held the contours of Section 299(1) stood satisfied.

There is no statutory requirement in the aforesaid Section, mandating the formal passing of an order by the Magistrate concerned

Para 14

Rejects the High Court's reasoning that a prior direction of the Trial Court is mandatory.

This Court cannot give an interpretation to this Section, which would defeat the very purpose behind it.

Para 20

The purpose of Section 299(1) is to ensure evidence against an accused who has deliberately absconded is preserved.

such an interpretation may also prompt accused persons to wilfully abscond themselves for long periods and await the death of the witness concerned.

Para 21

The Court identifies the mischief a restrictive reading would invite.

the two facts required for invocation of Section 299(1) are met in the instant case.

Para 22

Applies the test to the proclamation, chargesheet and deposition dates and the victim's death.

Allowed

The Verdict

Relief Granted

The High Court order setting aside the Trial Court's order of 05.09.2018 is set aside, so that the victim's earlier deposition is no longer barred on the ground accepted by the High Court. The judgment does not decide the guilt of the respondent.

Directions Issued

  • The impugned order dated 06.05.2022 passed in C.R.R. 3012 of 2018 by the High Court at Calcutta is set aside
  • Pending applications, if any, stand disposed of

Key Legal Principles Established

1

Section 299(1) CrPC is an exception to the rule that evidence must be recorded in the accused's presence and to Section 33 of the Evidence Act; its conditions must be established.

2

Two facts must be established when the witness deposes: that the accused is absconding, and that there is no immediate prospect of arresting him.

3

No formal order recording those facts need be passed before the witness deposes; what matters is whether the two essentials stood established on the date of deposition.

4

The earlier deposition can be used against the accused on arrest if the deponent is dead, incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense or inconvenience.

5

The prosecution need not move an application in the first trial as a matter of rule in every case where an accused is absconding.

6

A restrictive reading would defeat the purpose of Section 299(1) and could encourage accused persons to abscond and await the death of witnesses.

Key Takeaways

What different people should know from this case

  • Evidence given by a witness in the trial of other accused can, in limited situations, be used against a person who ran away and was arrested later.
  • This helps prevent an accused from benefiting by absconding until a witness dies.
  • The ruling does not decide guilt; the usual trial of the arrested accused continues and the evidence must still be assessed in that trial.

Frequently Asked Questions

The Court held that the deposition of a victim who died after testifying in the trial of co-accused can be used against an absconding accused who was arrested later, under Section 299(1) CrPC. It set aside the Calcutta High Court order that had barred the use of the deposition.
No. The Court said there is no statutory requirement of a formal order recording that the accused has absconded and that there is no immediate prospect of arrest. What matters is whether those two facts stood established on the date of the deposition.
No. The Court held that the prosecution cannot be required to move such an application as a rule in every trial, because Section 299(1) does not limit the stage at which it can be invoked.
The Court said a restrictive view would defeat the purpose of Section 299(1), which is to preserve evidence against an accused who has deliberately absconded, and could prompt accused persons to abscond for long periods and wait for a witness to die.
No. The judgment only concerns the admissibility of the deceased victim's earlier deposition against the respondent under Section 299(1). The trial against him continues.

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