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”
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
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.
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.
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.
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.
Chargesheet Against Three Apprehended Accused
The chargesheet showed the respondent and Md. Ali Khan as absconding and sought leave to file a supplementary chargesheet.
Chargesheet Against Three Apprehended Accused
The chargesheet showed the respondent and Md. Ali Khan as absconding and sought leave to file a supplementary chargesheet.
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.
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.
Death of the Victim
The victim passed away after her testimony had been completed.
Death of the Victim
The victim passed away after her testimony had been completed.
Three Accused Convicted
The Trial Court convicted the three apprehended accused and sentenced them to ten years of rigorous imprisonment.
Three Accused Convicted
The Trial Court convicted the three apprehended accused and sentenced them to ten years of rigorous imprisonment.
Respondent Arrested
The respondent and Md. Ali Khan were arrested; a supplementary chargesheet was filed on 24.11.2016.
Respondent Arrested
The respondent and Md. Ali Khan were arrested; a supplementary chargesheet was filed on 24.11.2016.
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.
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.
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.
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.
Supreme Court Allows State Appeals
The Supreme Court set aside the High Court order.
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
Arguments
The battle of arguments before the Supreme Court
Petitioner
Vihaan Kumar
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.
Respondent
State of Haryana
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.
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.
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
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.
Two facts must be established when the witness deposes: that the accused is absconding, and that there is no immediate prospect of arresting him.
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.
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.
The prosecution need not move an application in the first trial as a matter of rule in every case where an accused is absconding.
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.
Legal Framework
Applicable laws and provisions
Statutory Provisions
Section 299(1)
Code of Criminal Procedure, 1973
“If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the court may in his absence examine the prosecution witnesses and record their depositions, and any such deposition may, on the arrest of such person, be given in evidence against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without unreasonable delay, expense or inconvenience.”
Relevance: The central provision. The Court held that its two pre-conditions need only be established as of the date of deposition, without a separate order.
Section 33
Indian Evidence Act, 1872
“Governs the relevance of evidence given by a witness in a former proceeding in a later proceeding.”
Relevance: The Court described Section 299 CrPC as an exception to the principle in Section 33 that evidence of a witness whom a party had no opportunity to cross-examine is not admissible.
Section 335
Bharatiya Nagarik Suraksha Sanhita, 2023
“The corresponding provision to Section 299 CrPC.”
Relevance: The Court noted that the Legislature made no change to the provision in the new Sanhita.
Related Cases & Precedents
Nirmal Singh v. State of Haryana
followed(2000) 4 SCC 41
Section 299 CrPC is an exception to Section 33 of the Evidence Act and its preconditions must be established and proved before the earlier statements are used.
CBI v. Abu Salem Ansari
followed(2011) 4 SCC 426
Earlier evidence may be relied on against an absconding accused in the subsequent trial, subject to establishing the conditions precedent in the first part of Section 299(1).
Farida alias Farid Ahmed v. State of Chhattisgarh
similar2016 SCC OnLine Chh 2343
Chhattisgarh High Court allowed earlier witness statements to be used against an accused who had absconded.
Afzal v. State
similar2019 SCC OnLine Del 9686
Delhi High Court applied Nirmal Singh and Abu Salem to use a deceased witness's evidence against a proclaimed offender after arrest.
Watch & Learn
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State of West Bengal v. Kader Khan - Kannada Explanation
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State of West Bengal v. Kader Khan - Tamil Explanation
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State of West Bengal v. Kader Khan - Telugu Explanation
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State of West Bengal v. Kader Khan - Hindi Explanation
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State of West Bengal v. Kader Khan - English Explanation
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