2026 INSC 718

Crl. A. No(s). 1164 – 1166 of 2023 Page 1 of 17

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO (S). 1164 – 1166 OF 2023

THE STATE OF WEST BENGAL … APPELLANT(S)

VERSUS

KADER KHAN …RESPONDENT(S)

J U D G M E N T

SANJAY KAROL, J.

1. The present appeals have been preferred by the State against

the impugned judgment and order dated 06.05.2022 passed in

C.R.R. 3012 of 2018 by the High Court at Calcutta, wherein the

order dated 05.09.2018, passed by the Additional District and

Crl. A. No(s). 1164 – 1166 of 2023 Page 2 of 17

Sessions Judge, Fast Track, 2

nd

Court, City Sessions Court,

Calcutta in Order No. 36 in Session Case No. 47 of 2012, came to

be set aside.

2. The brief facts giving rise to this appeal are that on the

basis of a written complaint, FIR No. 29/2012 was registered on

09.02.2012 under Sections 376/223/506/34 of the Indian Penal

Code, 1860

1

and Section 25(ii)(a) & 27 of the Arms Act, 1959

against five accused persons, including the respondent herein. It

was stated in the complaint that on 05.02.2012, the victim was

returning home from Tantra Disco Thek in Kolkata at around

12:15 am at night, when one Lavi Gidwani offered to drop the

victim home. Upon entering the car, the accused persons got into

the car with her. Upon asking to be let out of the car, they refused

and continued driving. Thereafter, she was threatened and gang-

raped at gunpoint. Later, near the crossing of Exide House, she

was pushed out of the running car.

3. Thereafter, on 18.02.2012, three out of the five accused

persons, namely Nishad Alam, Sumit Bajaj and Md. Nasir Khan

2

were apprehended and taken into custody. As two accused could

1

Hereinafter ‘IPC’.

2

Hereinafter ‘apprehended accused persons’.

Crl. A. No(s). 1164 – 1166 of 2023 Page 3 of 17

not be apprehended, namely, the present respondent and Md. Ali

Khan, on 05.03.2012, warrant of arrest was issued by C.M.M.,

Kolkata qua them. As their presence could still not be secured,

on 12.04.2012, proclamation was issued against these

absconding accused. Proclamation notices came to be affixed on

12.04.2012 and 16.04.2012.

4. Upon the completion of investigation, on 10.05.2012,

chargesheet was filed against the three apprehended accused

persons under Sections 376(2)(g), 323 and 506 of the IPC.

Importantly, the present respondent and Md. Ali Khan were

shown to be absconding and a prayer was made for filing

supplementary chargesheet qua them.

5. Thereafter, while considering the bail applications of two

of the apprehended accused persons, the High Court at Calcutta

directed the trial to be split qua the apprehended accused persons

and absconding respondents, if they were not arrested before the

next date of hearing. Accordingly, on 22.01.2013, the trial stood

segregated. Charges were framed against the apprehended

accused persons under Section 376(2)(g) of the IPC on

19.02.2013.

Crl. A. No(s). 1164 – 1166 of 2023 Page 4 of 17

6. During the course of trial, the deposition of the victim lady

took place from 13.03.2013 till 03.07.2013 on multiple occasions

with the accused extensively cross-examining her. In all, the

prosecution examined 45 witnesses throughout the course of the

trial.

7. Unfortunately, post completion of her testimony, the

victim passed away on 13.03.2015. Vide judgment and order

dated 10.12.2015, the Trial Court convicted the three

apprehended accused persons for offences of gang-rape, criminal

conspiracy, hurt and criminal intimidation under Sections

376(2)(g), 120B, 34, 323, 506 of the IPC. They were sentenced

to undergo ten years of rigorous imprisonment.

8. Since the respondent herein and Md. Ali Khan were finally

apprehended and arrested on 30.09.2016 a supplementary

chargesheet was filed against them on 24.11.2016 in relation to

offences under Section 376(2)(g), 120B, 323, 506 and 34 of the

IPC in which charges were framed by the Additional District

and Sessions Judge, under all such aforesaid Sections.

Crl. A. No(s). 1164 – 1166 of 2023 Page 5 of 17

9. During the course of this trial, the prosecution moved an

application dated 20.04.2018 under Section 33 of the Indian

Evidence Act, 1872, seeking admission of the statement rendered

by the deceased victim in the earlier trial, admitted in the present

trial. The Trial Court, vide order dated 05.09.2018 allowed the

same.

10. Aggrieved thereof, the respondent filed a criminal revision

application bearing number C.R.R. No. 3012 of 2018 before the

High Court at Calcutta. Vide the impugned order, the High Court

allowed the same by setting aside the order dated 05.09.2018 of

the Trial Court. It was observed:

• The words of Section 299 CrPC cast an unambiguous

duty on the prosecuting agency to obtain a direction

from the Trial Court that the evidence may also be

recorded against the absconder.

• The deposition of the victim in the earlier trial cannot

be made admissible in the subsequent trial of the

absconding accused.

11. We have heard learned senior counsel, Mr. Siddharth

Aggarwal, for the appellant State, and learned advocate-on-

record Mr. Satya Kam Sharma for the respondent.

Crl. A. No(s). 1164 – 1166 of 2023 Page 6 of 17

12. A well-recognized facet of criminal jurisprudence is that

in normal circumstances a witness in a trial must be examined in

the presence of the accused and that such evidence given in one

trial cannot be used against an accused in another trial. But,

however, Section 299 of the CrPC is a departure from this rule.

It reads:

“299. Record of evidence in absence of accused.—

(1) If it is proved that an accused person has absconded, and

that there is no immediate prospect of arresting him, the

court competent to try or commit for trial, such person for

the offence complained of may, in his absence, examine the

witnesses (if any) produced on behalf of the prosecution, and

record their depositions and any such deposition may, on the

arrest of such person, be given in evidence against him on

the inquiry into, or trial for, the offence with which he is

charged, if the deponent is dead or incapable of giving

evidence or cannot be found or his presence cannot be

procured without an amount of delay, expense or

inconvenience which, under the circumstances of the case,

would be unreasonable.

(2) If it appears that an offence punishable with death or

imprisonment for life has been committed by some person or

persons unknown, the High Court or the Sessions Judge may

direct that any Magistrate of the First Class shall hold an

inquiry and examine any witnesses who can give evidence

concerning the offence and any depositions so taken may be

given in evidence against any person who is subsequently

accused of the offence, if the deponent is dead or incapable

of giving evidence or beyond the limits on India.”

(emphasis supplied)

Crl. A. No(s). 1164 – 1166 of 2023 Page 7 of 17

13. This Court had considered the import of Section 299

CrPC, in Nirmal Singh v. State of Haryana

3

and observed:

“4. …

Section 299 of the Code of Criminal Procedure consists of

two parts. The first part speaks of the circumstances under

which witnesses produced by the prosecution could be

examined in the absence of the accused and the second part

speaks of the circumstances when such deposition can be

given in evidence against the accused in any inquiry or trial

for the offence with which he is charged. This procedure

contemplated under Section 299 of the Code of Criminal

Procedure is thus an exception to the principle embodied in

Section 33 of the Evidence Act inasmuch as under Section

33, the evidence of a witness, which a party has no right or

opportunity to cross-examine is not legally admissible.

Being an exception, it is necessary, therefore, that all the

conditions prescribed, must be strictly complied with. In

other words, before recording the statement of the

witnesses produced by the prosecution, the court must be

satisfied that the accused has absconded or that there is no

immediate prospect of arresting him, as provided under the

first part of Section 299(1) of the Code of Criminal

Procedure…

… … …

In the case in hand, there is no order of the learned trial

Judge, recording a conclusion that on the materials, he was

satisfied that the persons who are examined by the

Magistrate under Section 299(1) are dead, though

according to the prosecution case, it is only after summons

being issued and the process-server having reported those

persons to be dead, their former statements were tendered

as evidence in trial and were marked as Exhibits PW-48/A

3

(2000) 4 SCC 41.

Crl. A. No(s). 1164 – 1166 of 2023 Page 8 of 17

to PW-48/E. As has been stated earlier, since the law

empowers the court to utilise such statements of persons

whose statements were recorded in the absence of the

accused as an exception to the normal principles embodied

in Section 33 of the Evidence Act, inasmuch as the accused

has been denied the opportunity of cross-examining the

witnesses, it is, therefore, necessary that the preconditions

for utilising such statements in evidence during trial must

be established and proved like any other fact. There

possibly cannot be any dispute with the proposition of law

that for taking the benefits of Section 299 of the Code of

Criminal Procedure, the conditions precedent therein must

be duly established and the prosecution, which proposes to

utilise the said statement as evidence in trial, must,

therefore, prove about the existence of the preconditions

before tendering the evidence. The Privy Council, in fact in

the case of Chainchal Singh v. Emperor [AIR 1946 PC 1 :

1945 All LJ 550] AIR p. 1 in analysing the applicability of

Section 33 of the Evidence Act, did come to the conclusion

that when the evidence given by the prosecution witness

before the committing Magistrate is sought to be admitted

before the Sessions Court under Section 33 on the ground

that the witness was incapable of giving evidence, then that

fact must be strictly proved and this may be more so in

those cases where the witness was not cross-examined in

the committing Magistrate's Court by reason of the accused

not having been represented by a counsel. In that particular

case the process-server had been examined, who stated that

he found the witness ill and unable to move from his house,

but that was not treated to be sufficient to hold that the

prosecution had discharged its burden of proving that the

witness was not available. But having said so, their

Lordships did not interfere with the conviction on the

ground that the court can interfere only if it is satisfied that

grave and substantial injustice has been caused by

misreception of the evidence in the case. On a mere perusal

of Section 299 of the Code of Criminal Procedure as well

as Section 33 of the Evidence Act, we have no hesitation to

come to the conclusion that the preconditions in both the

sections must be established by the prosecution and it is

Crl. A. No(s). 1164 – 1166 of 2023 Page 9 of 17

only then, the statements of witnesses recorded under

Section 299 CrPC before the arrest of the accused can be

utilised in evidence in trial after the arrest of such accused

only if the persons are dead or would not be available or

any other condition enumerated in the second part of

Section 299(1) of the Code of Criminal Procedure is

established…

… … …

The High Court in fact, on consideration of the entire

materials did record a finding that the requirements of the

first part of Section 299 of the Code of Criminal Procedure

must be held to have been established and there was no

illegality in recording the statements of the five persons as

the accused had been absconding and there was no

immediate prospect of the arrest of the said accused.”

(emphasis supplied)

14. From a conjoint reading of this elaborate discussion and

the statutory provisions, it is clear that for statements of

witnesses who are dead or otherwise incapable to be used in a

trial after the arrest of the accused, two facts must be established

before their deposition. 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

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

Crl. A. No(s). 1164 – 1166 of 2023 Page 10 of 17

would be relevant is whether these two essentials stood

established on the date of the deposition of the witness.

15. This view is fortified by the view taken by this Court in

CBI v. Abu Salem Ansari

4

. We cannot find reason to agree

with the High Court’s observation that in Abu Salem (Supra) the

“said report by a cryptic order observed only upon compliance

of requirements of Section 299(1) of the Cr.P.C. may evidence

recorded in an earlier trial be used in the subsequent trial of the

absconder.” In our view, in Abu Salem (Supra), this Court

permitted the evidence adduced in the earlier trial against the

accused therein, upon an application in the subsequent trial,

subject to the conditions discussed above. This Court observed

therein:

“5. As regards the first respondent, sub-section (1) of

Section 299 would apply as he, an accused person, was

absconding, his case is already split up and has to undergo

the trial. Obviously, the evidence adduced in the earlier

trial cannot be used against the first respondent except as

provided in sub-section (1) of Section 299 CrPC. In the

circumstances if the absconding accused appears again, the

prosecution witnesses have to be examined afresh. But, if

the deponent is dead or incapable of giving evidence or

cannot be found or his presence cannot be procured without

an amount of delay, expense or inconvenience, the

prosecution would be justified in relying on the evidence

already on record taken in the earlier trial in the absence of

the absconding accused.

4

(2011) 4 SCC 426.

Crl. A. No(s). 1164 – 1166 of 2023 Page 11 of 17

6. In the present case, sub-section (2) of Section 299 CrPC

has no application. Therefore, we make it clear that the

prosecution may rely on the earlier evidence recorded in

the earlier trial against the first respondent subject to

establishment of existence of any of the conditions

precedent as described in first part of Section 299 CrPC.”

16. This interpretation of Abu Salem (Supra) has been

followed by various High Courts of the country, in similar

circumstances to the instant case, as rightly submitted by the

appellant State. The High Court of Chhattisgarh at Bilaspur, in

Farida alias Farid Ahmed v. State of Chhatisgarh

5

, while

allowing the statements of witnesses in the earlier trial to be used

against the accused therein observed:

“12. The accused person who avoids trial at the initial stage

by remaining absconding and subsequently at a later stage

when he knows that the material witnesses are not available

on account of their death or being not traceable cannot be

given the benefit of the evidence which was recorded at the

first instance detrimental to the interest of the prosecution. If

such an analogy is brought into force then the entire criminal

jurisprudence system itself would get jeopardized and it

would rather give a premium to the accused person wherein

there are more than one accused available. They would make

the accused against whom the gravity of offence is less to

surrender and undergo the trial and thereafter the main

accused after a considerable period of time when the material

witnesses have either expired or are not traceable subject him

to trial and in whose case the material witnesses already

examined cannot be taken into consideration. It would result

5

2016 SCC OnLine Chh 2343.

Crl. A. No(s). 1164 – 1166 of 2023 Page 12 of 17

in the main accused getting scot-free easily and such a

situation in the larger perspective would be dangerous in a

civilized society governed by the rule of law.

14. On the basis of the discussions held in the preceding

paragraphs as also the ratio laid down by the Supreme Court

in the case of Abu Salem4 (supra), in the opinion of this

Court the Trial Court also has not committed any error of law

while rejecting the objection and the application moved by

the Revisioner accused seeking not to accept the evidence of

the witnesses who are not traceable or who have died as

admissible. So far as the contention of the Counsel for the

Reversioner in respect of the proceeding before the

Committal Court being taken into consideration by the Trial

Court for declaring the accused as an absconder being bad in

law the same is not sustainable. From the record what is

reflected is that before declaring the Revisioner accused as

an absconder, the proceedings had in fact been complied

with under the provisions of CrPC and such a proceeding

once having already undertaken at the stage of committal of

the trial would not be required to be undertaken again by the

Trial Court where the matter is being subjected to trial or else

it would amount to repeat of a procedure which has already

been undertaken further resulting in more delay in the

conclusion of trial.”

17. Similarly, the High Court of Judicature at Madras, in

Abdul Aziz v. State of Tamil Nadu

6

observed:

“10. In this case a valid proclamation was made against the

appellant as proclaimed offender and he has not challenged

the said proclamation. The CBI was unable to trace him

during the trial and hence, the mother case in CC No. 6 of

1998 was split into CC No. 10 of 2010 against the appellant

and evidence was recorded and his case was treated as

“LPC” case (Long pending cases as per the above Rules) and

6

2025 SCC OnLine Mad 2479.

Crl. A. No(s). 1164 – 1166 of 2023 Page 13 of 17

case was split against remaining accused in mother case in

CC No. 6 of 1998 and the same ended in conviction. During

the course of the said trial, approvers were examined. As

against one of the absconding accused also a separate trial

was conducted and during the said course of trial also

approvers were examined. Only during the present trial, one

of the approvers died and the other approver was unable to

be secured by the prosecution. The occurrence took place in

the year 1993 and the approver was examined by CBI in the

year 1994 and they were very much available till 2010 and

only during examination of witness in the year 2017 in this

split up case against the appellant, they were not available.

In the said circumstances, the application filed under Section

391 CrPC to mark the deposition of the approver recorded in

the mother case in CC No. 6 of 1998 is very much essential

and necessary to decide the role of the appellant. Section 391

is enabling section in order to secure the ends of justice and

to avoid the miscarriage of justice. The CBI has not newly

introduced the said witness in the course of the appeal. The

deposition of the approver PWs 1 and 2 were recorded during

the course of the trial of the mother case in CC No. 6 of 1998.

The present CC No. 10 of 2010 is continuation of the

proceedings of mother case in CC No. 6 of 1998. Further

under Section 299 CrPC it is clearly stated that recording of

the evidence in the absence of the accused in special

circumstances is permitted. Therefore, the present case

comes under such special circumstances.

10.4. Further, it is the duty of the accused to be present

during the trial. In spite of his knowledge about the trial,

he did not appear and voluntarily waived his right of

presence during the trial, hence, he cannot be allowed to

turn around and say that proper procedure was not

followed by the court and he lost the opportunity of fair

trial. The Supreme Court also reiterated the principle

that no one can be allowed to take advantage of his own

wrong.

10.7. The right of an accused to watch the prosecution

witnesses deposing before a court of law indisputably is

Crl. A. No(s). 1164 – 1166 of 2023 Page 14 of 17

a valuable right. However, same is only a statutory right

and has not yet been accepted as fundamental right in a

case where accused had absconded within the meaning

of Article 21 of the Constitution of India. As a sequel,

right to confront a witness by an absconding accused is

not a fundamental right. Even otherwise, fundamental

rights are not absolute being subject to reasonable

restrictions. The right of confronting by an accused is

subject to just exceptions. In the event of abscondance

for long years with intention to cause natural death to

the witnesses is an exceptional circumstance to decline

the right of confronting by accused.”

18. The High Court of Delhi at Delhi, has observed to similar

effect. While following the expositions in Nirmal Singh (Supra)

and Abu Salem (Supra), the High Court in Afzal v. State

7

observed:

“12. Thus it has to be seen whether ingredients of Section

299 Cr. P.C. as noted above have been satisfied or not in

the present case so that statement of Jyoti Gupta recorded

during the trial of co-accused can be used in the trial against

the appellant. The prosecution has proved on record that

after the appellant was arrested on 29th September, 2014 in

the above-noted FIR and after framing of charge when

Jyoti Gupta was required to be examined, she could not be

examined for the reason she had passed away. The first

charge-sheet in FIR No. 139/2005 registered at PS Malviya

Nagar was filed on 29th July, 2005 wherein it was clearly

noted that one of the accused involved was Afzal and

despite efforts he could not be traced and as and that

supplementary charge-sheet will be filed against him.

Proceedings to declare him a proclaimed offender were

initiated and he was finally declared a proclaimed offender

7

2019 SCC OnLine Del 9686.

Crl. A. No(s). 1164 – 1166 of 2023 Page 15 of 17

by the learned ACMM on 14th October, 2008.

Complainant Jyoti Gupta was partly examined in the Court

as PW-3 on 5th May, 2006 and her further examination in

chief and cross-examination were conducted on 4th

December, 2009 and 28th May, 2010. It is thus evident that

the evidence of Jyoti Gupta was completed only after the

appellant was declared a proclaimed offender and hence

her evidence in the trial of the appellant can be read against

him for the reason after the appellant was arrested in the

present FIR on 29th September, 2014 and Jyoti Gupta was

required to be examined as a witness, she had passed away.

It may also be noted that in the trial of the co-accused

Aditya Gupta was not examined as a witness, however as

Jyoti Gupta had passed away, in the trial of the appellant

Aditya Gupta who was also a victim and eye-witness was

examined as PW-2.”

19. Carrying the above expositions forward, 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 that the question of transfer of depositions will only

arise when the deponent thereof is no longer available.

20. 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 prosecuting agency cannot

move an application in the first trial as a matter of rule in every

trial where the accused is absconding, envisioning that by the

Crl. A. No(s). 1164 – 1166 of 2023 Page 16 of 17

time they are apprehended, the concerned witness will not remain

available due to death or other circumstances.

21. 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. If that were the case,

the phraseology involved, would have been so. Moreover, such

an interpretation may also prompt accused persons to wilfully

abscond themselves for long periods and await the death of the

witness concerned. We also note that the Legislature has made

no change to the corresponding provision to Section 299 CrPC,

in the recently enacted Bharatiya Nagarik Suraksha Sanhita,

2023 being Section 335.

22. Adverting to the facts at hand, it is borne from the record

that proclamation notice was issued against the respondent

herein on 12.04.2012. Thereafter, the chargesheet filed on

10.05.2012, showed the respondent as absconding. It cannot be

disputed that no challenge has been laid by the respondent to

these facts. The deposition of the deceased victim took place

from 13.03.2013 till 03.07.2013. Admittedly, on such date there

was no prospect of the respondent being apprehended soon. The

respondent only came to be arrested on 30.09.2016, three years

Crl. A. No(s). 1164 – 1166 of 2023 Page 17 of 17

thereafter. Consequently, the two facts required for invocation of

Section 299(1) are met in the instant case. Furthermore,

undisputably, the victim passed away on 13.03.2015. Therefore,

in our view, the contours of Section 299(1) stand satisfied.

23. In view of the above, the present appeals are allowed. The

impugned order dated 06.05.2022 passed in C.R.R. 3012 of 2018

by the High Court at Calcutta is set aside.

24. Pending application(s), if any, shall stand disposed of.

………………… ……………J.

(SANJAY KAROL)

………..………… …………..J.

(VIPUL M. PANCHOLI)

New Delhi

July 17, 2026