2026 INSC 718
State of West Bengal v. Kader Khan
HEAD NOTES
A. Criminal Procedure Code, 1973 — Section 299 — Evidence recorded in absence of absconding accused — Admissibility.
(Paras 12–22)
Held, evidence recorded during the trial of co-accused may be read against an absconding accused after his arrest if the requirements of Section 299(1) CrPC are satisfied, namely, (i) the accused had absconded and there was no immediate prospect of his arrest when the evidence was recorded, and (ii) the witness subsequently became unavailable due to death or any other circumstance specified in the Section.
B. Section 299 CrPC — Preconditions — Formal judicial order — Necessity.
(Paras 14, 19–22)
Held, Section 299 does not mandate that the Trial Court must pass a formal order recording satisfaction regarding the accused having absconded and there being no immediate prospect of arrest before recording evidence. What is essential is that these jurisdictional facts actually existed when the witness was examined.
C. Evidence Act, 1872 — Section 33 — Criminal Procedure Code, 1973 — Section 299 — Relationship.
(Paras 12–15)
Held, Section 299 CrPC constitutes a statutory exception to the general rule embodied in Section 33 of the Evidence Act requiring an opportunity of cross-examination. Being an exception, its conditions must be strictly proved before prior testimony can be admitted against an absconding accused.
D. Absconding accused — Benefit of own wrong — Impermissibility.
(Paras 19–21)
Held, an accused who deliberately absconds cannot be permitted to take advantage of his own conduct by contending that evidence recorded during his absence cannot subsequently be used after material witnesses have died or become unavailable. Any contrary interpretation would encourage deliberate evasion of trial.
E. Criminal Trial — Split-up case — Earlier deposition of deceased witness.
(Paras 15–22)
Held, where trial against absconding accused is separated from that of co-accused and the principal witness dies before the absconder is apprehended, the earlier deposition is admissible in the subsequent trial, subject to satisfaction of Section 299(1) CrPC.
F. Statutory Interpretation — Purposive construction — Section 299 CrPC.
(Paras 19–21)
Held, Section 299 must receive an interpretation that advances its object of preserving prosecution evidence against absconding offenders. The provision cannot be construed so narrowly as to frustrate its purpose or incentivise accused persons to evade arrest until witnesses become unavailable.
Analysis of Facts
The respondent was one of the accused in a gang rape case. While three co-accused were arrested and tried, the respondent absconded despite issuance of warrants and proclamation proceedings. Consequently, the trial against him was separated.
During the trial of the arrested accused, the prosecutrix gave extensive evidence and was cross-examined by the co-accused. Subsequently, she died before the respondent could be apprehended.
After the respondent's arrest, the prosecution sought permission under Section 299 CrPC to rely upon the deceased victim's earlier testimony. The Trial Court allowed the application. However, the High Court set aside the order holding that Section 299 required a prior judicial direction authorising recording of evidence against the absconding accused.
The Supreme Court reversed the High Court. It held that Section 299 does not require any formal judicial order before recording evidence. The only mandatory requirements are that the accused had absconded, there was no immediate prospect of his arrest when the witness was examined, and the witness later became unavailable. Since all these conditions stood established, the earlier deposition of the deceased victim was held admissible against the respondent.
Analysis of Law
The Supreme Court laid down the following principles:
Section 299 CrPC is a statutory exception to the normal rule requiring examination of witnesses in the presence of the accused.
The prosecution must establish:
that the accused had absconded;
that there was no immediate prospect of his arrest when the evidence was recorded; and
that the witness subsequently became unavailable due to death or other statutory reasons.
Section 299 does not require the Trial Court to pass a formal order recording satisfaction before evidence is recorded.
The existence of the jurisdictional facts—not the form of the order—is decisive.
The provision must be interpreted purposively to preserve evidence against absconding offenders.
An accused cannot derive advantage from his own deliberate abscondence by seeking exclusion of evidence rendered unavailable because of his conduct.
Ratio Decidendi
Section 299(1) of the Code of Criminal Procedure permits the use of evidence recorded during the absence of an absconding accused in his subsequent trial, provided it is established that the accused had absconded, there was no immediate prospect of his arrest when such evidence was recorded, and the witness has thereafter become unavailable owing to death or any other circumstance specified in the statute. The provision does not require a prior formal judicial order recording such satisfaction, and an absconding accused cannot be permitted to benefit from his own evasion of the criminal process.
