In a significant ruling on criminal procedure, a Supreme Court bench comprising Justice Sanjay Karol and Justice Vipul M. Pancholi has set aside a Calcutta High Court order, holding that the deposition of a deceased victim recorded during the trial of co-accused can be admitted as evidence in the subsequent trial of an absconding accused under Section 299 of the Code of Criminal Procedure, 1973 (CrPC). The Court clarified that there is no statutory mandate requiring a Magistrate to pass a formal order recording that the accused is absconding and there is no immediate prospect of arrest before a witness is examined.
Background of the Case
The case originates from an incident on February 5, 2012, when a victim was returning home from Tantra Disco Thek in Kolkata at around 12:15 am. An individual named Lavi Gidwani offered to drop her home. Upon her entering the car, the accused persons also boarded the vehicle. Despite her requests to be let out, they refused, drove on, and gang-raped her at gunpoint. She was subsequently pushed out of the running car near the crossing of Exide House.
Based on a written complaint, FIR No. 29/2012 was registered on February 9, 2012, under Sections 376/223/506/34 of the Indian Penal Code, 1860 (IPC) and Sections 25(ii)(a) and 27 of the Arms Act, 1959 against five accused persons, including the respondent, Kader Khan.
On February 18, 2012, three co-accused—Nishad Alam, Sumit Bajaj, and Md. Nasir Khan—were apprehended. Because Kader Khan and Md. Ali Khan could not be found, a warrant of arrest was issued on March 5, 2012, followed by a proclamation on April 12, 2012. On May 10, 2012, the police filed a chargesheet against the three apprehended accused, marking Kader Khan and Md. Ali Khan as absconding.
The Calcutta High Court subsequently ordered the trial to be split. The trial was officially segregated on January 22, 2013, and charges were framed against the three apprehended accused. The victim deposed extensively between March 13, 2013, and July 3, 2013, and was cross-examined by the defense.
The victim passed away on March 13, 2015. Later that year, on December 10, the Trial Court convicted the three apprehended co-accused under Sections 376(2)(g), 120B, 34, 323, and 506 of the IPC, sentencing them to ten years of rigorous imprisonment.
On September 30, 2016, Kader Khan and Md. Ali Khan were finally arrested. A supplementary chargesheet was filed against them, and charges were framed. The prosecution then moved an application under Section 33 of the Indian Evidence Act, 1872, seeking to admit the deceased victim’s deposition from the earlier trial into the current trial. The Trial Court allowed this application on September 5, 2018. However, on revision, the Calcutta High Court set aside the Trial Court’s order on May 6, 2022, holding that Section 299 CrPC places an “unambiguous duty” on the prosecution to first obtain a direction from the Trial Court to record evidence against an absconder, without which the previous deposition is inadmissible.
Arguments of the Parties
Senior Counsel Mr. Siddharth Aggarwal, appearing for the appellant State of West Bengal, contended that the transfer of depositions under Section 299(1) of the CrPC only arises when the deponent is no longer available. He argued that the provision is designed to preserve evidence against an accused who has deliberately absconded to evade trial.
Advocate-on-Record Mr. Satya Kam Sharma, representing the respondent Kader Khan, defended the Calcutta High Court’s ruling, maintaining that the procedural prerequisites of Section 299 of the CrPC must be strictly complied with and that the previous deposition could not be directly admitted without a prior formal order during the earlier trial.
The Court’s Analysis
The Supreme Court observed that while the normal rule of criminal jurisprudence requires a witness to be examined in the presence of the accused, Section 299 of the CrPC serves as an exception.
Analyzing the statutory framework, the Court noted that two primary conditions must exist to invoke Section 299(1): first, the accused is absconding, and second, there is no immediate prospect of their arrest.
Crucially, the Court rejected the High Court’s narrow interpretation, holding:
There is no statutory requirement in the aforesaid Section, mandating the formal passing of an order by the Magistrate concerned, recording that the above two facts have been complied with, before the witness has deposed. What would be relevant is whether these two essentials stood established on the date of the deposition of the witness.
In its analysis, the Supreme Court explicitly discussed several key precedents:
- Nirmal Singh v. State of Haryana (2000): The Court noted that while all conditions in Section 299 must be strictly established by the prosecution, the essential factor is the actual existence of the preconditions at the time the statements are recorded, rather than a formal recording of satisfaction by the judge.
- CBI v. Abu Salem Ansari (2011): The Court clarified that this precedent allows the prosecution to rely on evidence recorded in an earlier trial against an absconding accused in a subsequent trial, subject to establishing the conditions of Section 299 CrPC.
- Farida alias Farid Ahmed v. State of Chhattisgarh (2016): The Court cited this Chhattisgarh High Court decision with approval, noting that an accused who avoids trial by absconding cannot later benefit when material witnesses become unavailable.
- Abdul Aziz v. State of Tamil Nadu (2025): The Court referenced this Madras High Court ruling, which emphasized that an accused who voluntarily waives their right of presence during a trial cannot later claim a violation of the right to confront witnesses, as this is a statutory right, not an absolute fundamental right under Article 21 of the Constitution of India for an absconder.
- Afzal v. State (2019): The Court noted the Delhi High Court’s application of these principles to read the evidence of a deceased complainant against a proclaimed offender who was arrested years later.
Delivering the judgment, Justice Karol highlighted the risks of a restrictive interpretation of the law, observing:
From a reading of Section 299(1), it is clear that 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 stated:
Such an interpretation finds no support in the text of Section 299(1), which makes no reference or limitation to the stage at which the Section may be invoked.
The Court added:
Moreover, such an interpretation may also prompt accused persons to wilfully abscond themselves for long periods and await the death of the witness concerned.
The Bench also highlighted that the Legislature has maintained this exact position without change in Section 335 of the recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023, which corresponds to Section 299 of the CrPC.
Applying these principles to the facts, the Court found that a proclamation was issued against Kader Khan on April 12, 2012, and he remained absconding when the victim’s deposition was recorded in 2013. He was arrested only three years later in 2016. Because the victim passed away on March 13, 2015, the conditions of Section 299(1) of the CrPC were fully satisfied.
The Decision
The Supreme Court allowed the appeals filed by the State of West Bengal and set aside the impugned judgment and order of the Calcutta High Court dated May 6, 2022. Consequently, the Trial Court’s order allowing the admission of the deceased victim’s deposition as evidence against the respondent was restored.
Case Details
Case Title: The State of West Bengal v. Kader Khan
Case No.: Criminal Appeal Nos. 1164-1166 of 2023
Bench: Justice Sanjay Karol and Justice Vipul M. Pancholi
Date: July 17, 2026
