Section 299 CrPC: Supreme Court Says Deceased Witness's Earlier Deposition Can Be Used Against Absconding Accused

The Supreme Court has held that the deposition of a deceased victim recorded in an earlier trial can be admitted as evidence in the subsequent trial of an absconding accused, provided the conditions under Section 299(1) of the Code of Criminal Procedure (CrPC) [corresponding to Section 335(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023] are satisfied.

A Bench of Justices Sanjay Karol and Vipul M Pancholi said that while evidence recorded in one trial ordinarily cannot be used against an accused in another trial where they had no opportunity to cross-examine the witness, Section 299 of the CrPC creates a specific statutory exception to this rule.

Court noted that Section 299 enables a court to preserve evidence against an accused who deliberately absconds, so that such evidence does not become unavailable if the witness later dies or cannot testify for other reasons.

When Can a Deceased Witness's Earlier Deposition Be Used?

Explaining the scope of Section 299, the Bench said the provision permits the court to rely on the deposition of a witness recorded in the absence of the accused if two conditions existed when the statement was recorded: first, the accused was absconding; and second, there was no immediate prospect of the accused being arrested. In addition, at the time of the subsequent trial, the witness must be unavailable because of death or any other reason recognised under the law.

Court clarified that there is no statutory requirement for the Magistrate to pass a formal order recording that the accused was absconding and not likely to be arrested before the witness's statement is recorded.

"The first being that the accused concerned is absconding; and secondly, that there is no prospect of their immediate arrest. There is no statutory requirement in the Section, 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 Bench said.

Background of the Case

The appeal arose from a judgment of the Calcutta High Court dated May 6, 2022, which had set aside an order of the trial court allowing the prosecution to rely on the deceased victim's testimony in the subsequent trial of an absconding accused.

The case stems from an FIR registered on February 9, 2012 under Sections 376, 323, 506 and 34 of the Indian Penal Code [corresponding to Sections 64 (punishment for rape), 115 (voluntarily causing hurt), 351(2) (criminal intimidation), and 3(5) (acts done by several persons in furtherance of common intention), of the BNS respectively], along with provisions of the Arms Act, against five accused persons, including respondent Kader Khan.

According to the complaint, the victim was returning home from Tantra Disco Thek in Kolkata on February 5, 2012, when one Lavi Gidwani offered to drop her home. After she entered the car, the other accused allegedly got in, refused to let her leave, threatened her at gunpoint, gang-raped her, and later pushed her out of the moving vehicle near Exide House crossing.

Following investigation, a chargesheet was filed against three accused, while Kader Khan and another accused were shown as absconding. On the Calcutta High Court's direction, the trial was split between the arrested and absconding accused.

During the first trial, the victim testified over multiple hearings between March and July 2013. She was extensively cross-examined by the accused facing trial. The prosecution examined 45 witnesses in all.

The victim died on March 13, 2015. Later that year, the trial court convicted the three accused for gang rape, criminal conspiracy, hurt and criminal intimidation.

After Kader Khan and another absconding accused were arrested in September 2016, a supplementary chargesheet was filed against them. During this separate trial, the prosecution sought to rely on the deceased victim's earlier testimony under Section 33 of the Indian Evidence Act. The trial court allowed the application in September 2018.

However, the Calcutta High Court set aside that order, holding that the prosecution ought to have obtained a direction from the trial court at the time the victim's evidence was recorded that it would also be treated as evidence against the absconding accused.

Supreme Court on Section 299 CrPC

Disagreeing with the high court, the Supreme Court observed that criminal law ordinarily requires witnesses to testify in the presence of the accused, and evidence recorded in one trial cannot generally be used in another. However, Section 299 of the CrPC is a legislative exception to that principle.

The Bench held that adopting the High Court's interpretation would defeat the purpose of the provision, which is to preserve evidence against accused persons who intentionally evade trial.

"In our view, if a restrictive view of Section 299(1) is taken, it would be against its purported intent. We find credence in the submission of the appellant (State) that the question of transfer of depositions will only arise when the deponent thereof is no longer available," the Bench observed.

Court further said that requiring the prosecution to seek such permission in every case involving an absconding accused would be impractical, as it cannot predict whether a witness would later die or otherwise become unavailable.

It also warned that such an interpretation could encourage accused persons to deliberately evade arrest in the hope that key witnesses may no longer be available by the time they are apprehended.

The Bench also noted that the corresponding provision in the Bharatiya Nagarik Suraksha Sanhita, 2023, namely Section 335, remains unchanged, indicating the legislature's continued intent to preserve such evidence.

Holding that the requirements of Section 299(1) were satisfied in the present case, the Supreme Court allowed the State of West Bengal's appeal and set aside the Calcutta High Court's judgment.

Case Title: The State of West Bengal Vs Kader Khan

Bench: Justices Sanjay Karol and Vipul M Pancholi

Date of Judgment: July 17, 2026