Trial in Absentia
Subject: Polity & Governance
Why in News?
A Special NIA Court in Jammu issued a non-bailable warrant against Hafiz Saeed, chief of the banned Lashkar-e-Taiba (LeT), in connection with the Pahalgam terror attack. Since he is unlikely to appear before an Indian court, the NIA may seek a trial in absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Trial in Absentia
Meaning
Trial in absentia refers to a criminal trial conducted without the physical presence of the accused, when the accused has deliberately absconded to evade judicial proceedings.
- Legal Provision: Section 356 of the BNSS, 2023
- Replaces the earlier Code of Criminal Procedure (CrPC), 1973
- Applicable only when:
- The accused is a proclaimed offender.
- There is no immediate possibility of arrest.
- The court is satisfied that the accused is intentionally avoiding trial.
The court must record its reasons in writing before proceeding and may conduct the entire trial—from inquiry to judgment—as if the accused were present.
Position under the Earlier CrPC
The CrPC, 1973 did not permit a complete trial in the absence of the accused.
Relevant Provisions
| Provision | Purpose |
|---|---|
| Section 82(4) | Proclamation against absconding accused |
| Section 83 | Attachment of property of proclaimed offender |
| Section 299 | Recording evidence when accused absconded |
| Section 317 | Dispensing with personal attendance in limited situations |
Limitation
- Courts could only record evidence or exempt attendance in certain circumstances.
- Complete criminal trials could not proceed in the accused’s absence.
- As a result, many cases remained pending for years until the accused was arrested.
Section 356 BNSS marks a major procedural change by allowing full-fledged trials against absconding proclaimed offenders.
Who Can Be Tried in Absentia?
Section 356 does not apply to every absent accused.
It applies only to a “Proclaimed Offender” declared under Section 84 of BNSS.
Conditions
The accused must:
- Be declared a proclaimed offender by the court.
- Be accused of a serious offence punishable with:
- 10 years or more imprisonment, or
- Life imprisonment, or
- Death penalty.
- Continue to evade arrest despite legal process.
Procedure before Declaring a Proclaimed Offender
The court first:
- Issues a warrant of arrest.
- If the accused absconds, publishes a proclamation requiring appearance.
- Conducts an inquiry.
- Declares the accused a Proclaimed Offender if they fail to appear.
Only after this can trial in absentia be initiated.
Procedural Safeguards under Section 356 BNSS
To protect the right to a fair trial, the BNSS provides several safeguards:
Before Trial
- Two consecutive arrest warrants must be issued, at least 30 days apart.
- A public notice must be published in a local or national newspaper.
- The notice must also be displayed at the accused’s last known residence.
- The accused is given 30 days to appear.
- A relative or friend of the accused must be informed.
During Trial
- Trial can begin only after 90 days from the framing of charges.
- If the accused has no lawyer, the court must appoint a State-funded defence counsel.
- Previously recorded prosecution evidence can be relied upon.
- Witness testimonies should be recorded through audio-visual electronic means, wherever practicable, and preserved.
If the Accused Appears Later
If the accused is subsequently arrested or voluntarily appears, the court may:
- Permit cross-examination of witnesses, and
- Grant any other relief necessary to ensure the interests of justice.
Significance
- Prevents accused persons from frustrating the justice system by absconding.
- Enables timely disposal of serious criminal and terrorism-related cases.
- Strengthens India’s ability to prosecute cross-border terrorists and fugitives.
- Balances speedy justice with fair trial safeguards through mandatory procedural protections.
Challenges
- May raise concerns regarding the constitutional right to a fair trial.
- Ensuring that the accused had actual knowledge of the proceedings may be difficult.
- Risk of misuse if safeguards are not strictly followed.
- Effective implementation depends on judicial scrutiny and adherence to due process.
