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2026 Supreme(SC) 792

SUPREME COURT OF INDIA
SANJAY KAROL, VIPUL M. PANCHOLI, JJ.
The State Of West Bengal – Appellant
Versus
Kader Khan – Respondents
Criminal Appeal No(s). 1164-1166 of 2023
Decided On : 17-07-2026

Advocates appeared:
For Appellant(s) :Mr. Siddharth Aggarwal, Sr. Adv. Mr. Kunal Mimani, AOR Mr. Kartikey Bhatt, Adv. Ms. Shraddha Chirania, Adv. Mr. Akshay Luthra, Adv. Mr. Karan Dhalla, Adv. For Respondent(s): Mr. Aloke Kumar Sengupta, Adv. Mr. Suraj Prakash, Adv. Ms. Deblina Sengupta, Adv. Mr. Anshuman Singh, Adv. Mr. Varun Singh, Adv. Mr. Satya Kam Sharma, AOR

Evidence recorded in a prior trial against co-accused is admissible under the relevant criminal procedure code against an absconding accused who has since been apprehended, provided the prosecution proves the accused was absconding during the original deposition and the witness is now deceased or unavailable.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 299 - Admissibility of evidence recorded in absence of accused - Absconding accused - Witness deceased - Statutory procedure - The court clarified that this provision serves as a vital exception to the rule of witness confrontation, allowing the induction of prior testimony in a subsequent trial against an accused who was absconding during the initial proceedings, provided the deponent is dead or otherwise incapacitated. (Paras 12, 14, 20)

(B) Evidence - Admissibility - Pre-conditions for invocation - It is not a statutory requirement to have a formal judicial order at the time of recording evidence to invoke this provision later; the crucial aspect is whether the preconditions of the accused being absconding and the prosecution being unable to secure their presence at the material time are satisfied. (Paras 14, 22)

Facts of the case:
The case involves a situation where a complainant provided testimony against several co-accused, while others were declared absconding. The absconding individuals were subsequently arrested years later, by which time the complainant had passed away. The trial court admitted the previous statement pursuant to the statutory exception, but the appellate court later disallowed it, prompting a challenge before this court.

Findings of Court:
The court established that the statutory provision in question is designed to preserve evidence when an accused deliberately evades trial. Requiring a preemptive judicial direction to label witness depositions for future use against an absconder would frustrate the administration of justice and encourage defendants to wait for the unavailability of witnesses.

Issues: Whether the statement of a deponent (who has since deceased) recorded during a trial of co-accused can be used in a subsequent trial of an accused who was absconding during the initial trial.

Ratio Decidendi: The legal requirement is the objective existence of the conditions of abscondance and unavailability, rather than the existence of a formal judicial order passed at the time of the initial deposition. Admitting such evidence prevents individuals from gaining an advantage by evading legal process until critical witnesses pass away.

Result: Appeals allowed; impugned order set aside.

Table of Content
1. procedural history and factual background leading to the current challenge. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10)
2. requirements for admitting earlier-recorded evidence under section 299 crpc. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21)
3. application of legal principles to facts for final order. (Para 22 , 23 , 24)

JUDGMENT :

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 Sessions Judge, Fast Track, 2nd 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, 1860¹[Hereinafter ‘IPC’.] 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 Khan²[Hereinafter ‘apprehended accused persons’.] were apprehended and taken into custody. As two accused could 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.

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.

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

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2026 Supreme(SC) 792

SUPREME COURT OF INDIA SANJAY KAROL, VIPUL M. PANCHOLI, JJ.The State Of West Bengal – AppellantVersusKader Khan – RespondentsCriminal Appeal No(s). 1164-1166 of 2023Decided On : 17-07-2026

Cases Referred (3)

SUPREME COURT OF INDIA
SANJAY KAROL, VIPUL M. PANCHOLI, JJ.
The State Of West Bengal – Appellant
Versus
Kader Khan – Respondents
Criminal Appeal No(s). 1164-1166 of 2023
Decided On : 17-07-2026