No Statutory Requirement U/S 299 CrPC Mandating Formal Order By Magistrate Recording Compliance Of Conditions: Supreme Court
The Supreme Court was considering an appeal preferred by the State against the impugned judgment of the Calcutta High Court.
The Supreme Court has held that for statements of witnesses who are dead or otherwise incapable of being used in a trial after the arrest of the accused under Section 299 of the CrPC, it must be established before their deposition that the accused concerned is absconding and there is no prospect of their immediate arrest. The Apex Court clarified that there is no statutory requirement in the provision, 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.
The Apex Court was considering an appeal preferred by the State against the impugned judgment of the Calcutta High Court, wherein the order passed by the Additional District and Sessions Judge, Fast Track, came to be set aside.
Referring to Section 299 of the CrPC, the Division Bench of Justice Sanjay Karol and Justice Vipul M. Pancholi held, “From a conjoint reading of this elaborate discussion and the statutory provisions, it is clear that for statements of witnesses who are dead or otherwise incapable to be used in a trial after the arrest of the accused, two facts must be established before their deposition. The first being that the accused concerned is absconding; and secondly, that there is no prospect of their immediate arrest. 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.”
Senior Advocate Siddharth Aggarwal represented the Appellant while Advocate Aloke Kumar Sengupta represented the Respondent.
Factual Background
On the basis of a written complaint, an FIR was registered under Sections 376, 223,506, 34 of the Indian Penal Code, 1860 and Sections 25(ii)(a) & 27 of the Arms Act, 1959, against five accused persons, including the respondent. It was stated in the complaint that when the victim was returning home from a Disco in Kolkata at night, 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 gangraped at gunpoint. Later, near the crossing of Exide House, she was pushed out of the running car.
Three out of the five accused persons were apprehended and taken into custody. As two accused could not be apprehended, namely, the respondent and Md. Ali Khan, a warrant of arrest was issued. When that failed, a proclamation was issued against these absconding accused. Upon the completion of the investigation, a chargesheet was filed against the three apprehended accused persons under Sections 376(2)(g), 323 and 506 of the IPC. The respondent and Md. Ali Khan was finally apprehended, arrested, and a supplementary chargesheet was filed against them in relation to offences under Section 376(2)(g), 120B, 323, 506 and 34 of the IPC.
The prosecution moved an application under Section 33 of the Indian Evidence Act, seeking admission of the statement rendered by the deceased victim in the earlier trial, admitted in the present trial. The Trial Court allowed the same. Aggrieved thereby, the respondent filed a criminal revision application before the Calcutta High Court. Vide the impugned order, the High Court allowed the same by setting aside the order of the Trial Court.
Reasoning
The Bench, at the outset, stated, “A well-recognized facet of criminal jurisprudence is that in normal circumstances a witness in a trial must be examined in the presence of the accused and that such evidence given in one trial cannot be used against an accused in another trial. But, however, Section 299 of the CrPC is a departure from this rule.”
The Bench further stated, “We also note that the Legislature has made no change to the corresponding provision to Section 299 CrPC, in the recently enacted Bharatiya Nagarik Suraksha Sanhita, 2023 being Section 335.”
On a perusal of the facts of the case, the Bench noted that the proclamation notice was issued against the respondent on April 12, 2012. Thereafter, the chargesheet filed on May 10, 2012, showed the respondent as absconding. The Bench noticed that no challenge was laid by the respondent to these facts. The deposition of the deceased victim took place from March 13, 2013 till July 3, 2013. Considering that the respondent only came to be arrested three years later, the Bench held that the two facts required for invocation of Section 299(1) were met in the instant case. In light of the fact that the victim passed away on March 13, 2015, the Bench held that the contours of Section 299(1) stood satisfied.
Thus, setting aside the impugned order of the High Court, the Bench allowed the appeal.
Cause Title: The State of West Bengal v. Kader Khan (Neutral Citation: 2026 INSC 718)
Appearance
Appellant: Senior Advocate Siddharth Aggarwal, AOR Kunal Mimani, Advocates Kartikey Bhatt, Shraddha Chirania, Akshay Luthra, Karan Dhalla
Respondent: Advocates Alok Kumar Sengupta, Suraj Prakash, Deblina Sengupta, Anshuman Singh, Varun Singh, AOR Satya Kam Sharma