What is meant by trial in Absentia? 

Why in the News?

A Special NIA Court in Jammu issued a non-bailable warrant against Lashkar-e-Taiba chief Hafiz Saeed in the Pahalgam terror attack case, days after the NIA filed a supplementary chargesheet charging him under the Bharatiya Nyaya Sanhita (BNS), 2023 and the Unlawful Activities (Prevention) Act, 1967. Since Saeed is unlikely to appear before an Indian court, the NIA is expected to seek a trial in absentia under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

What is trial in absentia, and why did the CrPC regime fail to deliver it?

1. Definition: A trial in absentia is a criminal trial conducted without the physical presence of the accused, with the court proceeding to inquiry, trial, and judgment as if the accused were present.
2. Section 356 mechanism: BNSS Section 356 permits a court to treat the absence of a proclaimed offender as a waiver of the right to be present, after recording reasons in writing, once there is no immediate prospect of arrest.
3. CrPC’s partial provisions: Section 82(4) CrPC allowed proclamation and attachment of an absconding accused’s property. Section 317 CrPC allowed trial in absence only in specific cases. Section 299 CrPC allowed recording of evidence in absence where early arrest was not expected.
4. Discretion without completion: CrPC provisions permitted in-absentia proceedings only when the accused’s personal attendance was unnecessary for justice, or when the accused persistently disrupted court proceedings. None allowed a full trial to conclude in the accused’s absence.
5. Resulting backlog: Without a mechanism for full trial completion, cases against absconding accused remained pending for years until arrest. Prosecutorial closure and deterrence were both weakened.

Whom does Section 356 apply to?

1. Restricted scope: The provision does not apply to every absconding accused. It applies only to a person declared a “proclaimed offender” under Section 84 of the BNSS.
2. Offence severity threshold: Under Section 84(4), a person can be declared a proclaimed offender only for offences punishable with imprisonment of 10 years or more, life imprisonment, or death.
3. Declaration process: The court declares a person a proclaimed offender after such inquiry as it considers necessary, once the accused fails to appear at the specified place and time despite proclamation.
4. Application to Saeed: Charges relating to waging war against India and cross-border conspiracy meet this severity threshold, making Saeed eligible for trial in absentia once declared a proclaimed offender.

What procedural safeguards protect the accused’s right to a fair trial?

1. Dual warrants: Two consecutive arrest warrants must be issued at an interval of at least 30 days before proceedings can commence.
2. Public notice: A notice must be published in a local or national newspaper, giving the accused 30 days to appear before the court.
3. Notice at residence: The notice must also be displayed at the accused’s last known residence, and a relative or friend must be informed of the trial.
4. Cooling-off period: The trial cannot commence until 90 days have elapsed from the framing of charges, giving the accused time to appear.
5. State-funded defence: If the absconding accused has no legal representation, the court must appoint a defence lawyer at the State’s expense.

What happens if the absconding accused later appears or is apprehended?

1. Provisional use of evidence: Statements of prosecution witnesses recorded before the trial’s commencement can be used as evidence against the absconding accused.
2. Right to cross-examine: If the accused later appears or is apprehended, the court may permit cross-examination of witnesses in the interest of justice.
3. Audiovisual preservation: Depositions and examination of witnesses are, as far as practicable, recorded through audiovisual electronic means.
4. Purpose of preservation: Recordings are preserved to ensure transparency, accuracy, and integrity of the trial, and to enable review if the accused is later apprehended.

Does trial in absentia resolve the problem of absconding offenders, or does it merely shift it elsewhere?

1. Verdict without custody: A conviction in absentia establishes legal guilt but does not itself secure physical custody of an accused based abroad, as in Saeed’s case in Pakistan.
2. Enforcement gap persists: Extradition or handover of a convicted proclaimed offender still depends on bilateral treaties and the host state’s cooperation, which a trial in absentia cannot compel.
3. Symbolic versus substantive closure: The mechanism ends prosecutorial limbo and enables sentencing, but substantive closure for victims requires enforcement of the sentence, an outcome outside the court’s control.
4. Fair trial versus finality: Section 356’s safeguards balance the accused’s Article 21 rights against the State’s interest in finality. The accused’s inability to personally instruct defence counsel or contest evidence in real time remains an inherent limitation of any in-absentia trial.

Conclusion

Section 356 of the BNSS fills a long-standing gap in India’s criminal law by allowing a full trial in absentia for proclaimed offenders in serious offences. Unlike the CrPC, which allowed only limited in-absentia proceedings, it prevents cases from remaining pending indefinitely. The provision balances this expanded power with layered safeguards, dual warrants, public notice, a waiting period, state-funded defence, and post-apprehension cross-examination rights, to protect the accused’s fair trial rights. However, a conviction in absentia only delivers a judicial verdict; it does not solve the challenge of bringing back an accused protected by a non-cooperating foreign state.