THE STATE OF WEST BENGAL
Vs.
KADER KHAN
( Before : Sanjay Karol and Vipul M. Pancholi, JJ. )
Criminal Appeal No(S). 1164 – 1166 of 2023
Decided on : 17-07-2026
Section 299 CrPC has no stage-limitation; deceased witness's earlier deposition against absconding accused is admissible if abscondence and unavailability are proved.
A. Criminal Procedure Code, 1973 (CrPC) — Section 299 — Record of evidence in absence of accused — Scope and applicability — Exception to the rule that a witness must be examined in presence of the accused and to the principle under S. 33, Evidence Act — Being an exception, all prescribed conditions must be strictly complied with — Deposition recorded in absence of an absconding accused admissible against him upon arrest, if deponent is dead, incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense or inconvenience. [Paras 12-14]
B. Criminal Procedure Code, 1973 (CrPC) — Section 299(1) — Preconditions — No formal order required — Two facts must be established for use of earlier deposition: (i) accused is absconding; and (ii) no immediate prospect of his arrest — No statutory requirement of a formal order by the Magistrate recording compliance with these conditions before the witness deposes — What matters is whether the two essentials stood established as on the date of deposition. [Para 14]
C. Criminal Procedure Code, 1973 (CrPC) — Section 299(1) — Splitting of trial — Use of evidence recorded in trial of co-accused against subsequently arrested absconder — Evidence in earlier trial cannot ordinarily be used against an absconding accused arrested later, except as provided under S. 299(1) — Where deponent is dead or unavailable despite due efforts, prosecution justified in relying on evidence already on record — High Court's restrictive reading of CBI v. Abu Salem Ansari, (2011) 4 SCC 426 disapproved. [Para 15]
D. Criminal Procedure Code, 1973 (CrPC) — Section 299(1) — Purposive interpretation — Stage of invocation — Provision contains no limitation regarding the stage at which it may be invoked — Restrictive interpretation would defeat the object of preserving evidence against a deliberately absconding accused and could incentivise accused persons to abscond awaiting the death or unavailability of witnesses — No corresponding change made in S. 335, Bharatiya Nagarik Suraksha Sanhita, 2023. [Paras 19-21]
E. Criminal Procedure Code, 1973 (CrPC) — Section 299(1) — Application to facts — Respondent declared absconder and shown as such in chargesheet before deposition of victim (deceased witness) was recorded — No immediate prospect of arrest at the relevant time; respondent arrested three years later — Victim having died in the interim, preconditions of S. 299(1) held satisfied — Order of High Court excluding such deposition set aside. [Para 22]
