Supreme Court Rules Dead Witness Testimony Admissible Against Absconded Accused Under Section 299 CrPC

Supreme Court Rules Dead Witness Testimony Admissible Against Absconded Accused Under Section 299 CrPC

The Supreme Court of India has held that a deceased victim's deposition, recorded during the trial of co-accused persons, can be used as evidence against an absconding accused under Section 299 of the Code of Criminal Procedure, 1973 (CrPC), and that no formal order from a Magistrate is required to record compliance of the conditions of that provision. The judgment in State of West Bengal v. Kader Khan (2026 LiveLaw (SC) 692 / 2026 INSC 718), delivered on July 17, 2026 by Justice Sanjay Karol and Justice Vipul M. Pancholi, sets aside a Calcutta High Court order and clarifies an important procedural question in criminal law.

This case was decided under the old Code of Criminal Procedure, 1973, as the events predated the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The equivalent provision under the BNSS is Section 336. The principles articulated by the Supreme Court in this judgment will, however, continue to be relevant for the interpretation and application of the corresponding provision under the new law.

Factual Background

The case involved serious criminal charges against Kader Khan, who was one of several accused persons. A proclamation was issued against Kader Khan on April 12, 2012, after he absconded and could not be traced. While he remained absconding, the trial of the co-accused proceeded, and the victim's deposition was recorded as part of that trial in 2013.

Kader Khan was eventually arrested three years later in 2016. However, by that time, the victim had already died on March 13, 2015. The death of the victim meant that the prosecution could no longer examine the victim afresh during Kader Khan's trial. The prosecution therefore sought to use the victim's deposition, which had been recorded during the co-accused's trial, as evidence against Kader Khan under Section 299 of the CrPC.

Section 299 of the CrPC provides a mechanism for the use of evidence recorded in the presence of the accused or in proceedings against other persons, when the witness who gave that evidence is subsequently unable to testify due to death, insanity, illness, or other specified reasons. The provision is designed to prevent the loss of valuable evidence in circumstances where the witness becomes unavailable through no fault of the prosecution.

The Calcutta High Court's Order

The Calcutta High Court had taken the view that Section 299 CrPC required the Magistrate to pass a formal order recording compliance with the conditions specified in the section before the evidence of a deceased or unavailable witness could be used against an accused. In the absence of such a formal order, the High Court held that the victim's deposition could not be admitted as evidence against Kader Khan.

This interpretation imposed an additional procedural safeguard that, according to the High Court, was necessary to protect the rights of the accused. The High Court's reasoning was that the use of evidence recorded in the absence of the accused is an exceptional measure, and that the Magistrate should formally satisfy himself that the conditions of Section 299 are met before allowing such evidence to be used.

The Supreme Court's Analysis

The Supreme Court disagreed with the Calcutta High Court's interpretation. The bench held that there is no statutory mandate under Section 299 CrPC requiring a Magistrate to pass a formal order recording compliance of the conditions before examining a witness or before the deposition of an unavailable witness is used as evidence. The provision itself does not prescribe any such procedural step, and imposing one would amount to reading into the statute a requirement that the legislature did not intend.

The Court reasoned that the conditions of Section 299 are factual prerequisites that can be established through evidence at the trial. If the prosecution can demonstrate that the witness is dead, insane, too ill to testify, or otherwise unavailable for reasons specified in the section, the deposition recorded during the co-accused's trial becomes admissible. The determination of whether these conditions are met is a matter for the trial court to decide based on the evidence, not a matter requiring a separate formal order from the Magistrate.

Justice Karol and Justice Pancholi emphasized that the purpose of Section 299 is to preserve valuable evidence and prevent the failure of justice. An interpretation that imposes unnecessary procedural hurdles would defeat this purpose and could lead to the loss of critical testimony, particularly in cases involving serious offences where the victim or key witness dies before the accused is apprehended.

Application to the Facts

Applying these principles to the facts of the case, the Supreme Court found that all the conditions of Section 299(1) CrPC were satisfied. Kader Khan had been proclaimed as an absconder on April 12, 2012. While he was absconding, the victim's deposition was recorded during the trial of the co-accused in 2013. The victim subsequently died on March 13, 2015, before Kader Khan was arrested in 2016.

The chronology of events made Section 299 squarely applicable. The victim's deposition was recorded in a proceeding in which Kader Khan could have been present but for his own act of absconding. The victim's death made it impossible for the prosecution to secure the victim's testimony afresh. In these circumstances, the deposition was admissible as evidence against Kader Khan, and the Calcutta High Court erred in holding otherwise.

Significance for Criminal Procedure

The judgment has important implications for the administration of criminal justice. In many serious criminal cases, accused persons abscond to evade trial, sometimes for years. During this period, witnesses may die, become incapacitated, or become otherwise unavailable. Section 299 CrPC (and its successor, Section 336 BNSS) provides a vital tool for ensuring that the evidence of such witnesses is not lost. For related analyses of criminal procedure, see our criminal law articles.

The Supreme Court's holding that no formal Magistrate order is required removes a potential procedural obstacle that could be exploited by absconding accused persons to challenge the admissibility of evidence. The ruling ensures that the focus remains on the substantive question of whether the conditions of the section are met, rather than on procedural formalities that the statute does not require.

At the same time, the judgment does not diminish the protections available to the accused. The accused retains the right to challenge the admissibility of the evidence by demonstrating that the conditions of Section 299 are not satisfied. The accused can also challenge the credibility and reliability of the deposition through cross-examination of other witnesses and through other evidentiary means available at trial.

Transition to BNSS: Section 336

While this case was decided under the old CrPC, the principles articulated by the Court are directly relevant to the interpretation of Section 336 of the BNSS, which is the successor provision to Section 299 CrPC. Section 336 BNSS carries forward the same essential framework, allowing the evidence of unavailable witnesses to be used in subsequent proceedings under specified conditions.

Practitioners and trial courts applying the BNSS should take note of this judgment, as it clarifies that the procedural approach under the new code should be consistent with the Supreme Court's interpretation: the conditions of the section are factual prerequisites to be established through evidence, not procedural requirements necessitating a separate formal order.

Conclusion

The Supreme Court's decision in State of West Bengal v. Kader Khan is a clear and practical ruling that resolves an important question of criminal procedure. By holding that Section 299 CrPC does not require a formal Magistrate order recording compliance of its conditions, the Court has removed a procedural hurdle that could impede the effective prosecution of absconders. The judgment preserves the balance between the rights of the accused and the interests of justice, ensuring that valuable evidence is not lost due to unnecessary formalities. As the criminal justice system transitions to the BNSS, the principles established in this case will continue to guide the application of Section 336 in similar situations.