Section 299 CrPC: Supreme Court Says Deceased Witness's Earlier Deposition Can Be Used Against Absconding Accused

• The Supreme Court ruled that a deceased witness's prior deposition can be used against an absconding accused under Section 299 CrPC (now Section 335 BNSS).
• No formal judicial order is required from a Magistrate to establish the accused's abscondence or lack of immediate arrest at the time of the deposition.
• Admissibility depends on factually proving the accused was absconding and not likely to be arrested when the statement was recorded, and the witness is now unavailable.
• This statutory exception preserves evidence against those who deliberately evade justice, preventing testimony from becoming unusable if a witness later dies.
• The ruling stemmed from an appeal concerning a gang-rape case where an accused, Kader Khan, was absconding, and the victim's testimony was recorded before her subsequent unavailability.

The admissibility of such prior deposition hinges on whether these two essential conditions can be factually established as having existed on the date the witness provided their testimony.

The Indian Supreme Court recently clarified the procedural requirements for admitting a deceased witness's prior testimony in a criminal trial, specifically concerning an accused who has absconded. A bench comprising Justices Sanjay Karol and Vipul M Pancholi ruled that a deposition recorded from a deceased witness in an earlier proceeding can indeed be used as evidence in a subsequent trial against an absconding accused. This is permissible provided the specific conditions outlined in Section 299 of the Code of Criminal Procedure (CrPC), now corresponding to Section 335 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, are met.

Crucially, the Court emphasized that there is no statutory mandate for a Magistrate to issue a formal judicial order explicitly stating that the accused was absconding and unlikely to be arrested at the time the witness's statement was initially recorded. Instead, the admissibility of such prior deposition hinges on whether these two essential conditions can be factually established as having existed on the date the witness provided their testimony. This ruling provides significant clarity on the admissibility of prior deposition criminal trial scenarios involving deceased witness absconding accused.

Ordinarily, evidence presented in one trial cannot be used against an accused in a separate proceeding if they did not have the opportunity to cross-examine the witness. However, Section 299(1) of the CrPC carves out a specific statutory exception to this fundamental principle, designed to prevent evidence from becoming unavailable due to an accused's deliberate evasion of justice. This provision allows for the preservation of crucial testimony against individuals who abscond, ensuring that the death or unavailability of a witness at a later stage does not derail the prosecution.

For a deceased witness's earlier deposition to be admissible under CrPC Section 299 conditions, two primary criteria must have been satisfied at the time the original statement was recorded: first, the accused in question must have been absconding; and second, there must have been no immediate prospect of their arrest. Furthermore, at the juncture of the subsequent trial, the witness themselves must be unavailable, typically due to death, or for any other reason recognized by law. The Indian Supreme Court evidence absconding accused ruling underscores that the factual existence of these conditions, rather than a formal pre-recording judicial declaration, is paramount for the deceased victim testimony India to be considered.

The Supreme Court's pronouncement came in an appeal challenging a Calcutta High Court judgment dated May 6, 2022. The High Court had previously overturned a trial court's decision that had permitted the prosecution to rely on the testimony of a deceased victim in the ongoing trial of an accused who had absconded. The underlying criminal case originated from an FIR lodged on February 9, 2012, involving serious charges under Sections 376, 323, 506, and 34 of the Indian Penal Code (now corresponding to Sections 64, 115, 351(2), and 3(5) of the BNS, respectively), alongside provisions of the Arms Act.

The complaint detailed a harrowing incident from February 5, 2012, in Kolkata. The victim, after leaving Tantra Disco Thek, accepted a ride offer from one Lavi Gidwani. Once inside the vehicle, other accused individuals allegedly entered, prevented her from exiting, threatened her at gunpoint, subjected her to gang-rape, and subsequently pushed her out of the moving car near the Exide House crossing. Following the investigation, a chargesheet was filed against three of the accused, while respondent Kader Khan and another individual were identified as absconding. Acting on a directive from the Calcutta High Court, the trial was bifurcated, separating the proceedings for the arrested accused from those for the absconding individuals. During the initial trial phase, the victim provided her testimony across multiple hearings between March and July 2013, before her subsequent unavailability.

This Supreme Court decision significantly impacts criminal procedure, particularly in cases where an accused evades arrest and a key witness later becomes unavailable. By clarifying that a formal judicial order is not a prerequisite for invoking Section 299 CrPC (or Section 335 BNSS deceased witness provisions), the Court has streamlined the process for prosecutors seeking to introduce prior depositions. The focus now firmly shifts to the factual establishment of the accused's abscondence and the lack of immediate arrest prospects at the time the original testimony was recorded.

For legal practitioners, this means that the evidentiary strategy in such cases will revolve less around the existence of a specific judicial pronouncement and more around proving the factual circumstances surrounding the accused's status at the time of the deposition. Defense lawyers challenging the admissibility of prior deposition criminal trial evidence will need to scrutinize the prosecution's ability to demonstrate that the accused was genuinely absconding and not merely unapprehended, and that there was no immediate likelihood of arrest. This ruling reinforces the legislative intent of Section 299 to prevent deliberate abscondence from undermining justice, while also setting clear, albeit fact-dependent, parameters for its application.

This Supreme Court ruling clarifies the procedural requirements for admitting a deceased witness's prior deposition against an absconding accused, specifically removing the need for a formal judicial order. Lawyers prosecuting or defending such cases must now focus on factually establishing the accused's abscondence and lack of immediate arrest at the time of the original deposition, which impacts evidence strategy and the potential for challenging such evidence.

Source: Original reporting via legal news outlet