The State of West Bengal v. Kader Khan, 2026

The prosecution alleged that a woman was gang-raped in 2012 by multiple accused persons.

Three accused were arrested and faced trial, while the respondent absconded and could not be apprehended.

During the trial of the arrested co-accused, the victim deposed before the Trial Court and was duly cross-examined by the advocates representing those accused.

Before the respondent could be arrested, the victim died on 13 March 2015.

The respondent was eventually arrested on 30 September 2016, almost three years after the victim's deposition.

During the respondent's trial, the prosecution sought to rely upon the victim's earlier testimony recorded during the trial of the co-accused.

The Calcutta High Court refused permission, holding that the Trial Court had not passed a formal order under Section 299 CrPC before recording the victim's evidence.

Aggrieved by the High Court's decision, the State of West Bengal appealed before the Supreme Court.

The Supreme Court allowed the appeal filed by the State of West Bengal.

The Court held that Section 299 CrPC is an exception to the general rule requiring evidence to be recorded in the presence of the accused.

It observed that the provision aims to preserve evidence where an accused deliberately absconds and avoids the trial.

The Court clarified that passing a formal order under Section 299 CrPC is not mandatory before recording the testimony of a witness.

It held that what is essential is the existence of the two statutory conditions:

• the accused was absconding, and

• there was no immediate prospect of his arrest at the time the evidence was recorded.

The Court found that both statutory requirements were fully satisfied in the present case.

It noted that the respondent remained absconding when the victim's evidence was recorded and was arrested only three years later.

Since the victim had died before the respondent's arrest, her earlier testimony became admissible under Section 299 CrPC.

The Court held that the High Court adopted an unduly narrow interpretation of Section 299 by insisting upon a formal judicial order.

It observed that such an interpretation would defeat the legislative purpose by encouraging accused persons to evade arrest until important witnesses die.

Accordingly, the Court set aside the order of the Calcutta High Court and permitted the prosecution to rely upon the deceased victim's earlier deposition against the respondent.

The judgment clarifies the true scope of Section 299 CrPC, emphasizing that the provision is intended to prevent absconding accused from frustrating criminal trials.

The Court reaffirmed that Section 299 CrPC operates as a statutory exception to Section 33 of the Evidence Act, permitting the use of earlier testimony even though the accused had no opportunity to cross-examine the witness.

By holding that a formal judicial order is unnecessary, the Court adopted a purposive interpretation that advances the legislative objective rather than defeating it through procedural technicalities.

The decision prevents accused persons from benefiting from their own deliberate conduct of remaining absconding until material witnesses become unavailable.

The judgment carefully balanced the accused's fair trial rights with the need to preserve crucial prosecution evidence in exceptional circumstances.

The Court reaffirmed that the statutory safeguards under Section 299 remain mandatory and must be strictly proved before earlier testimony is admitted.

The ruling harmonizes earlier precedents, particularly Nirmal Singh v. State of Haryana and CBI v. Abu Salem Ansari, by clarifying that neither decision requires a formal order under Section 299.

The decision strengthens criminal jurisprudence by ensuring that valuable evidence is not rendered useless merely because an accused intentionally evaded the judicial process.