Trial in Absentia

About Trial in Absentia

• A trial in absentia is a criminal trial conducted without the accused being present in court.
• Key legal provisions:
  • Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) allows a court to conduct such a trial if a person declared a proclaimed offender has absconded to avoid trial and there is no immediate possibility of arrest.
    • After recording its reasons in writing, the court may continue with the inquiry, trial, and judgment as if the accused were present.
  • Under the earlier Code of Criminal Procedure, 1973 (CrPC):
    • Section 82(4) allowed proclamation and attachment of the property of an absconding accused.
    • Section 317 allowed a Judge or Magistrate to conduct proceedings without the accused in certain special situations.
    • Section 299 allowed evidence to be recorded in the absence of an absconding accused if there was no immediate chance of arrest.
  • These provisions gave courts limited discretion to proceed without the accused only when:
    • the personal presence of the accused was not necessary in the interest of justice, or
    • the accused repeatedly disrupted court proceedings.
  • However, the CrPC did not permit a full criminal trial in the absence of the accused. As a result, many trials remained pending for years until the accused was arrested.
• Applicability: Trial in absentia is available only in cases involving serious offences punishable with imprisonment of at least 10 years, life imprisonment, or death, where the accused has been declared a proclaimed offender
• Procedural safeguards under Section 356: Section 356 includes several safeguards to ensure a fair trial before proceedings can begin in the absence of the accused. These include:
  • Two consecutive arrest warrants must be issued at least 30 days apart.
  • A notice must be published in a local or national newspaper, giving the accused 30 days to appear before the court.
  • The notice must also be displayed at the accused’s last known residence.
  • A relative or friend of the accused must be informed about the trial.
  • The trial cannot begin until 90 days after charges are framed, giving the accused sufficient time to appear.
• If the accused does not have a lawyer, the court must appoint a defence lawyer at the State’s expense to protect the accused’s right to a fair trial.
• Statements of prosecution witnesses recorded before the trial begins may be used as evidence against the absconding accused.
  • However, if the accused later appears or is arrested, the court may allow the witnesses to be cross-examined in the interest of justice.
• As far as possible, witness statements and examinations should be recorded through audiovisual electronic means.
  • These recordings must be preserved to ensure transparency, accuracy, and the integrity of the trial, and to assist the court if the accused is later apprehended.