Deceased Witness's Testimony From Split Trial Admissible Against Absconding Accused Without Prior Formal Order: Supreme Court

"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." Supreme Court of India, in a significant ruling on criminal jurisprudence dated July 17, 2026, held that the testimony of a deceased witness recorded in an earlier split trial can be used against an absconding accused who is arrested later, even without a prior formal order from the trial court.

A bench comprising Justice Sanjay Karol and Justice Vipul M. Pancholi observed that Section 299(1) of the Code of Criminal Procedure (CrPC) does not mandate a Magistrate to formally record that the accused is absconding before the witness deposes, provided the conditions are factually met on that date.

The case stems from a 2012 gang-rape incident in Kolkata where the trial court split the case after two accused, including respondent Kader Khan, absconded. The victim extensively deposed and was cross-examined by the apprehended accused, but tragically passed away in 2015 before the absconders were arrested in 2016. The trial court permitted the prosecution to admit her prior testimony under Section 33 of the Indian Evidence Act, but the Calcutta High Court set this aside, prompting the State of West Bengal to appeal to the Supreme Court.

The primary question before the court was whether Section 299 of the CrPC casts an unambiguous duty on the prosecuting agency to obtain a specific direction from the trial court to record evidence against an absconder. The court was also called upon to determine if the deposition of a victim who dies after the initial trial can be made admissible in the subsequent trial of the absconding accused.

Scope of Section 299 CrPC

The Supreme Court initiated its analysis by recognising that Section 299 of the CrPC operates as a vital departure from the general rule of criminal jurisprudence. Normally, evidence must be recorded in the presence of the accused, and evidence from one trial cannot be used in another. However, the bench noted that this provision functions as a crucial exception to preserve testimony when an accused deliberately evades the law.

Preconditions Must Exist On Date Of Deposition

Analysing the statutory text in conjunction with Section 33 of the Evidence Act, the bench held that for the statements of dead or incapable witnesses to be admissible in a subsequent trial, two essential facts must be established. The court observed that "the first being that the accused concerned is absconding; and secondly, that there is no prospect of their immediate arrest." Crucially, the bench clarified that what is relevant is whether these essentials stood established on the exact date of the deposition.

No Formal Magisterial Order Mandated

The Supreme Court firmly rejected the Calcutta High Court's reasoning that a formal, prior magisterial order was a strict prerequisite. The bench held that there is absolutely no statutory requirement mandating the formal passing of an order by the Magistrate recording compliance with the two conditions before the witness takes the stand. The court stated that such a restrictive view would be entirely against the purported intent of the legislature.

Preventing Premium On Absconding

The court emphasised that Section 299(1) is designed to ensure evidence is preserved where an accused has deliberately absconded from trial. The bench observed that prosecuting agencies cannot reasonably predict that a witness might die before the absconder is caught. Warning against hyper-technical interpretations, the court noted, "Such an interpretation may also prompt accused persons to wilfully abscond themselves for long periods and await the death of the witness concerned."

Reliance On Abu Salem Judgment

Relying heavily on its precedent in CBI v. Abu Salem Ansari, the bench reiterated that if an absconder is arrested and the original deponent is dead, the prosecution is completely justified in relying on the earlier recorded evidence. The court noted with approval that multiple High Courts, including those of Chhattisgarh, Madras, and Delhi, have correctly followed this interpretation to prevent main accused persons from getting scot-free by merely outliving the availability of material witnesses.

New Criminal Laws Maintain The Stance

Interestingly, the bench also took judicial notice of the newly enacted criminal procedural framework. The court observed that the legislature has deliberately chosen to make no change to the corresponding provision. The bench highlighted that the recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023, retains the exact same phraseology without adding any limitations under its Section 335.

Consequently, the Supreme Court allowed the appeals filed by the State of West Bengal and set aside the impugned judgment of the Calcutta High Court. The court held that since the respondent was a proclaimed offender and there was no prospect of his immediate arrest when the deceased victim deposed between 2013 and 2015, the contours of Section 299(1) stood fully satisfied, thereby rendering her testimony admissible against him.

Date of Decision: July 17, 2026