Trial in Absentia: Understanding India’s New Legal Mechanism for Absconding Offenders

Trial in Absentia Latest News

• A Special NIA Court in Jammu has issued a non-bailable warrant against Hafiz Saeed, the Pakistan-based chief of the proscribed terror outfit Lashkar-e-Taiba (LeT), in connection with the investigation into the Pahalgam terror attack. 
• The warrant was issued at the request of the National Investigation Agency (NIA), two days after it filed a supplementary chargesheet against Saeed. 
• 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).

Background of the Case

• The NIA’s supplementary chargesheet has charged Hafiz Saeed both in his individual capacity and as chief of LeT and its proxy outfit, The Resistance Front (TRF). 
• He has been charged under various provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, and the Unlawful Activities (Prevention) Act, 1967, including provisions relating to waging war against India and conspiracy hatched from across the border.

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What is Trial in Absentia?

• A trial in absentia refers to a criminal trial conducted in the absence of the accused. 
• Under Section 356 of the BNSS, if a person declared a proclaimed offender has absconded to evade trial and there is no immediate prospect of arrest, the court may treat the accused’s absence as a waiver of their right to be present. 
• After recording reasons in writing, the court can proceed with the inquiry, trial, and pronouncement of judgment as though the accused were present.

Comparison with the Earlier CrPC Framework

• Under the Code of Criminal Procedure, 1973 (CrPC), which BNSS has replaced:
  • Section 82(4) CrPC allowed proclamation and attachment of property of an absconding accused.
  • Section 317 CrPC allowed trial in the accused’s absence only in specific cases.
  • Section 299 CrPC allowed recording of evidence in the accused’s absence if there was no prospect of arrest.
• These provisions gave presiding officers discretion to proceed in-absentia only if the accused’s personal attendance was not necessary for justice, or if the accused persistently disrupted proceedings. 
• Crucially, none of these provisions allowed a full-fledged trial in absentia, causing many trials to remain pending for years until the accused was apprehended. 
• BNSS’s Section 356 addresses this gap by enabling complete trials, not just partial proceedings, in the accused’s absence

Who Does This Apply To?

• Trial in absentia does not apply to every accused person; it is available only for a “proclaimed offender,” as defined under Section 84 of the BNSS. 
• Under Section 84(4), if a proclamation has been issued against a person accused of an offence punishable with imprisonment of 10 years or more, life imprisonment, or death, and the person fails to appear before the court, the court may declare them a proclaimed offender after due inquiry.
• Thus, trial in absentia is restricted to serious offences carrying at least 10 years’ imprisonment, life imprisonment, or death, where the accused has already been declared a proclaimed offender.

Procedural Safeguards Under Section 356

• To protect the accused’s right to a fair trial, several safeguards must be met before proceedings can begin:
  • Two consecutive arrest warrants must be issued at an interval of at least 30 days.
  • A public notice must be published in a local or national newspaper, giving the accused 30 days to appear.
  • The notice must be displayed at the accused’s last known residence, and a relative or friend must be informed.
  • The trial cannot commence until 90 days have elapsed from the framing of charges, ensuring adequate opportunity for the accused to appear.
  • If the accused has no legal representation, the court must appoint a defence lawyer at State expense.
  • Statements of prosecution witnesses recorded before the trial may be used as evidence; however, if the accused is later apprehended, the court may permit cross-examination of witnesses in the interest of justice.
  • Depositions and witness examinations may be recorded through audiovisual electronic means, preserved to ensure transparency, accuracy, and integrity, and to enable review if the accused is later apprehended.

Conclusion

• Trial in absentia under BNSS marks a significant shift from the CrPC’s fragmented approach, enabling complete trials of proclaimed offenders in serious cases while embedding robust safeguards. 
• It balances the need for timely justice against absconding offenders like Hafiz Saeed with the constitutional guarantee of a fair trial.

Source: TH | OHRH