Definition
Trial in absentia refers to a criminal trial conducted without the physical presence of the accused. It is introduced in India under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which replaced the Code of Criminal Procedure (CrPC), 1973. It allows courts to continue proceedings against proclaimed offenders who have absconded to evade trial, without requiring their physical presence in court.
CrPC, 1973 (Old Law)
- No provision for complete trial in absentia
- Only limited evidence recording in specific situations
- Trials halted when accused absconded
- Delays in justice for serious crimes
BNSS, 2023 (New Law)
- Full-fledged trial in absentia permitted
- Applies to proclaimed offenders under Section 84
- Strict procedural safeguards built in
- Court-appointed defence counsel mandatory
Eligibility Conditions for Trial in Absentia
- Accused must have been declared a Proclaimed Offender under Section 84 of BNSS.
- Accused must have absconded to evade trial with no immediate possibility of arrest.
- Applies only to serious offences punishable with imprisonment of 10 years or more, life imprisonment, or death penalty.
Before Trial Commences
- Two arrest warrants issued ≥30 days apart
- Public notice published in newspapers
- Notice at accused's last known residence
- Relative or friend must be informed
- Trial begins only 90 days after charges framed
Rights During Trial
- Right to legal representation protected
- State-funded defence counsel if no lawyer
- Principles of natural justice must be followed
- Testimony via audio-visual means allowed
- Cross-examination if accused later appears
Rationale Behind Section 356 BNSS
- To prevent accused from delaying justice by absconding across international borders.
- To ensure speedy trials in serious offences including terrorism and organised crime.
- To strengthen India's criminal justice system against fugitives like Hafiz Saeed.
- To address cases involving fugitives and terrorists residing abroad.
- To enhance victims' access to justice even when accused evade Indian courts.
Challenges & Concerns
- Possibility of violating the right to a fair trial if safeguards are not strictly followed.
- Difficulty in ensuring effective and competent legal representation for the absent accused.
- Risk of misuse if procedural safeguards are bypassed in lower courts.
- Enforcing judgments against foreign fugitives remains a major challenge.
- Strict Procedural Adherence — Judicial oversight must ensure all Section 356 safeguards are followed rigorously.
- Quality Legal Aid — Ensure competent state-funded defence counsel for absent accused.
- International Cooperation — Strengthen extradition treaties and mutual legal assistance for fugitive prosecution.
- Digital Evidence — Wider use of audio-visual testimony recording and digital evidence preservation.
- Constitutional Balance — Maintain balance between speedy justice and fundamental rights protection.
Prelims Quick Facts
1. It is governed by Section 356 of the BNSS.
2. It applies only to proclaimed offenders accused of serious offences.
3. Courts must appoint a defence lawyer if the accused has no legal representation.
Which of the statements given above is/are correct?
Correct Answer: D — 1, 2 and 3
- Statement 1: Correct — Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 introduces the provision for trial in absentia in India for the first time as a comprehensive legislative framework.
- Statement 2: Correct — Trial in absentia under BNSS is limited to proclaimed offenders (declared under Section 84) accused of serious offences punishable with 10 years or more imprisonment, life imprisonment, or death penalty.
- Statement 3: Correct — Section 356 mandates that if the absent accused has no legal representation, the court must appoint a State-funded defence counsel to ensure fair trial principles are maintained.
Mains Question — 10 Marks | 150 Words
Model Answer
Trial in absentia under Section 356 of the BNSS, 2023 allows courts to proceed with criminal trials against proclaimed offenders — such as Hafiz Saeed and other fugitives — who have absconded to evade Indian justice. This represents a significant reform in India's criminal procedure law, previously governed by the CrPC, 1973 which had no comparable provision.
The advantages are considerable: it prevents accused persons from delaying justice by absconding, ensures speedy disposal of serious criminal cases involving terrorism and organised crime, strengthens prosecution of fugitives residing abroad, enhances victims' access to justice, and deters the abuse of judicial processes through deliberate non-appearance.
However, legitimate concerns must be addressed: the possibility of violating the right to a fair hearing if procedural safeguards are not strictly observed, difficulty in ensuring effective legal representation for an absent accused, challenges in enforcing judgments against foreign fugitives, and risk of misuse if lower courts do not maintain rigorous procedural compliance. The constitutional right to fair trial under Article 21 must be scrupulously protected.
The BNSS addresses these through strict safeguards: mandatory two arrest warrants 30 days apart, public newspaper notification, display at accused's last residence, informing a relative, 90-day waiting period after charge framing, and mandatory State-funded defence counsel appointment. Success depends on strict judicial oversight, effective legal aid quality, strengthened international extradition cooperation, and wider use of audio-visual technology for testimony preservation.
