Introduction:
The Supreme Court of India has delivered a significant judgment clarifying the scope and application of Section 299 of the Code of Criminal Procedure, 1973 (CrPC), holding that the earlier testimony of a witness who has subsequently died can be relied upon against an accused who had absconded during the original trial, provided the statutory conditions prescribed under Section 299 are satisfied. The ruling reinforces the principle that an accused cannot derive an advantage from deliberately evading the criminal justice process and ensures that valuable prosecution evidence is not rendered useless merely because the accused remained unavailable during the trial.
The judgment was delivered by a Bench comprising Justice Sanjay Karol and Justice Vipul M. Pancholi in The State of West Bengal v. Kader Khan [2026 LiveLaw (SC) 692]. The Court set aside the judgment of the Calcutta High Court, which had refused to permit the prosecution to rely upon the deposition of the deceased victim in the subsequent trial of an absconding accused on the ground that the trial court had not passed a formal order under Section 299 CrPC before recording her evidence.
The decision is important because it resolves a recurring procedural issue concerning the admissibility of evidence recorded in the absence of an accused who deliberately absconds. Ordinarily, criminal trials are governed by the principle that evidence must be recorded in the presence of the accused, enabling the accused to hear the testimony, instruct counsel, and effectively exercise the right of cross-examination. Likewise, evidence recorded in one proceeding generally cannot be used in another unless specifically permitted by law. These safeguards are fundamental components of a fair criminal trial.
However, Section 299 CrPC creates a carefully crafted exception to these general principles. The provision recognises that criminal justice cannot be permitted to fail merely because an accused intentionally avoids the judicial process. It therefore authorises the preservation of evidence where an accused has absconded and there is no immediate prospect of arrest. If, by the time the accused is apprehended, the witness has died, become incapable of giving evidence, cannot be located, or cannot be produced without unreasonable delay or expense, the earlier deposition may be read in evidence against the accused, subject to strict compliance with the statutory conditions.
The prosecution case arose from a gang rape allegedly committed in 2012. Following registration of the case, three accused persons were arrested and put on trial. During the pendency of the proceedings, the respondent-accused absconded and could not be apprehended. Consequently, the trial proceeded only against the arrested accused persons.
During that trial, the victim entered the witness box and gave a detailed account of the incident before the trial court. She was subjected to extensive cross-examination by the advocates representing the co-accused who were facing trial. While the respondent continued to remain absconding, the victim unfortunately passed away on 13 March 2015.
The respondent was eventually arrested more than three years later, on 30 September 2016. Since the victim was no longer alive, the prosecution sought permission to rely upon her earlier testimony recorded during the trial of the co-accused. The prosecution contended that the requirements of Section 299 CrPC stood satisfied because the respondent had deliberately absconded and there had been no immediate prospect of his arrest when the victim’s evidence was recorded.
The trial court permitted reliance upon the earlier deposition. However, the Calcutta High Court interfered with that order, holding that since the trial court had not expressly passed a formal order under Section 299 recording its satisfaction that the respondent was absconding and that there was no immediate prospect of his arrest, the earlier testimony could not be used against him. Aggrieved by this restrictive interpretation, the State of West Bengal approached the Supreme Court.
The central question before the Supreme Court was whether a formal judicial order under Section 299 CrPC is a mandatory precondition for the admissibility of the deposition of a deceased witness against an absconding accused or whether the Court need only be satisfied that the factual requirements contemplated by the provision actually existed at the time the evidence was recorded.
Arguments of the Parties:
The appellant-State of West Bengal argued that the High Court had adopted an unduly technical and narrow interpretation of Section 299 CrPC, thereby frustrating the very object for which the provision was enacted. According to the State, Section 299 is intended to preserve valuable prosecution evidence in cases where an accused deliberately absconds and avoids participation in the trial. If courts insist upon a formal judicial order before recording evidence, even where the factual conditions under the provision clearly exist, the legislative purpose would be defeated.
The State submitted that the respondent had been consistently shown as an absconding accused from the very inception of the proceedings. The charge sheet filed on 10 May 2012 specifically recorded his status as absconding. This factual position remained undisputed throughout the proceedings and was never challenged by the respondent. At the time the victim’s deposition was recorded between March and July 2013, there was admittedly no immediate prospect of securing the respondent’s arrest.
The appellant further argued that the victim had subsequently died before the respondent was apprehended. Consequently, the precise contingency contemplated under Section 299 had materialised. Since the witness was no longer available to depose in the subsequent trial, excluding her earlier testimony merely because the trial court had not formally recorded its satisfaction under Section 299 would elevate procedure over substance and undermine the administration of criminal justice.
The State also relied upon earlier decisions of the Supreme Court, particularly Nirmal Singh v. State of Haryana (2000) and CBI v. Abu Salem Ansari (2011), contending that these judgments recognise the admissibility of evidence recorded during the earlier trial against an absconding accused once the statutory requirements are fulfilled. It was argued that neither of these decisions mandates the passing of a separate judicial order before recording such evidence.
The appellant emphasised that accepting the High Court’s interpretation would create dangerous consequences for criminal trials. Accused persons facing serious offences could intentionally evade arrest for years, hoping that victims or material witnesses might die during the intervening period. Such a result would seriously prejudice the prosecution and encourage abuse of the judicial process.
The respondent-accused, on the other hand, supported the reasoning adopted by the Calcutta High Court. It was argued that Section 299 CrPC creates an exception to the fundamental rule that evidence must ordinarily be recorded in the presence of the accused. Since the provision curtails the valuable right of cross-examination, its requirements must be construed strictly.
The respondent contended that before evidence recorded in the absence of an accused can later be used against him, the trial court must first record its satisfaction that two jurisdictional facts exist, namely that the accused has absconded and that there is no immediate prospect of arrest. According to the respondent, this satisfaction should ordinarily be reflected in a formal judicial order.
It was argued that the absence of such an order rendered the subsequent reliance upon the victim’s deposition legally impermissible. The respondent further maintained that permitting reliance upon earlier testimony without strict procedural compliance would dilute the safeguards intended to protect the rights of accused persons during criminal trials.
Supporting the respondent’s stand, the Calcutta High Court had concluded that the prosecution had failed to satisfy the procedural requirements of Section 299 because no formal order had been passed before recording the victim’s evidence. Consequently, the High Court refused permission to read the earlier deposition in evidence against the respondent.
Court’s Judgment:
Allowing the appeal filed by the State of West Bengal, the Supreme Court categorically held that a formal judicial order under Section 299 CrPC is not a mandatory prerequisite for the admissibility of a deceased witness’s earlier testimony against an absconding accused. What is essential is not the existence of a formal order but the actual existence of the statutory conditions prescribed under the provision.
The Bench observed that Section 299 constitutes a limited statutory exception to two well-established principles of criminal jurisprudence. First, criminal evidence is ordinarily required to be recorded in the presence of the accused. Secondly, testimony recorded in one proceeding is generally inadmissible in another. Section 299 departs from these principles because it seeks to prevent an accused from benefiting from his own deliberate evasion of the judicial process.
The Court explained that the provision strikes a careful balance between protecting the rights of the accused and safeguarding the interests of justice. Since an absconding accused voluntarily chooses not to participate in the proceedings, the law permits the prosecution to preserve evidence that may otherwise become unavailable due to the passage of time.
Interpreting the language of Section 299, the Court held that only two foundational facts are required to be established before the earlier deposition can subsequently be relied upon. The first requirement is that the accused was absconding at the relevant time. The second requirement is that there was no immediate prospect of arrest. The statute does not expressly require the Magistrate or trial court to pass a separate or formal order recording these findings before the witness is examined.
Justice Sanjay Karol, speaking for the Bench, observed that the High Court had incorrectly read into Section 299 a procedural requirement that the legislature itself had consciously omitted. The Court emphasised that judicial interpretation cannot introduce additional conditions that are absent from the statutory language.
The Bench further clarified that the legislative purpose behind Section 299 is to ensure that evidence against an absconding accused is preserved. If courts insist upon a formal order as an indispensable procedural requirement, the very object of the provision would frequently stand defeated. Valuable testimony of victims and eyewitnesses could become unusable merely because the trial court did not formally record its satisfaction despite the factual requirements being clearly fulfilled.
The Supreme Court explained that when a witness remains alive and available, there is ordinarily no occasion to invoke Section 299 because such witness can always be summoned and examined during the subsequent trial after the accused is arrested. The provision becomes relevant only where the witness dies, becomes mentally or physically incapable of giving evidence, cannot be traced despite reasonable efforts, or cannot be produced without unreasonable delay, inconvenience or expense.
The Court strongly observed that adopting the restrictive interpretation accepted by the High Court would inadvertently reward absconding accused persons. Such an approach could encourage accused individuals to intentionally evade arrest for prolonged periods in the expectation that material witnesses may die or disappear, thereby substantially weakening the prosecution case. The law cannot be interpreted in a manner that incentivises obstruction of justice.
While recognising that Section 299 is an exception to the general rule embodied in Section 33 of the Indian Evidence Act, the Court reiterated that its conditions must indeed be strictly established. However, strict proof of factual conditions does not translate into a mandatory requirement of a formal judicial order.
In reaching this conclusion, the Supreme Court carefully examined its earlier decisions. Referring to Nirmal Singh v. State of Haryana (2000), the Bench observed that the earlier judgment recognised Section 299 as an exception to the ordinary rules governing admissibility of evidence. However, the decision nowhere stated that the recording of a formal judicial order is indispensable before evidence can be preserved.
The Court also analysed CBI v. Abu Salem Ansari (2011) and held that the High Court had misunderstood its ratio. On a proper reading, Abu Salem recognised the prosecution’s right to rely upon evidence recorded during an earlier trial where the accused had absconded and the witness subsequently became unavailable, provided the statutory requirements under Section 299 were fulfilled.
The Bench further noted that the same interpretation has consistently been adopted by the High Courts of Delhi, Madras and Chhattisgarh, thereby lending further support to the purposive construction adopted by the Supreme Court.
Applying these principles to the present case, the Court found that every statutory requirement stood fully established. The charge sheet itself described the respondent as absconding. His absconding status remained uncontroverted. The victim’s deposition was recorded between March and July 2013, during which period there was admittedly no realistic possibility of securing the respondent’s immediate arrest. The respondent was eventually apprehended only in September 2016, more than three years later. In the meantime, the victim had passed away on 13 March 2015.
Since both foundational requirements under Section 299 existed when the testimony was recorded and the witness had subsequently died before the respondent’s arrest, the Court held that her deposition could legally be relied upon during the respondent’s trial.
Accordingly, the Supreme Court set aside the judgment of the Calcutta High Court and allowed the appeal filed by the State. The ruling provides much-needed clarity regarding the operation of Section 299 CrPC by holding that the admissibility of earlier testimony depends upon the actual existence of the statutory conditions rather than the formality of a separate judicial order. The judgment strengthens the criminal justice system by ensuring that absconding accused persons cannot exploit procedural technicalities to frustrate prosecution or benefit from their own deliberate avoidance of the judicial process while simultaneously preserving the statutory safeguards intended to protect the rights of the accused.