What is meant by “ Trial in Absentia”?

The NIA may seek Hafiz Saeed’s trial in absentia under Section 356 of the BNSS after a Jammu court issued a non-bailable warrant against him in the Pahalgam terror attack case. 

What is a Trial in Absentia?

• A trial in absentia is a criminal trial conducted in the absence of the accused.
• Under Section 356 of the BNSS, the court may proceed against an accused when:
  • the accused has been declared a proclaimed offender;
  • the accused has absconded to evade trial; and
  • there is no immediate prospect of arresting the accused.
• The court may treat the accused’s absence as a waiver of the right to remain present during the proceedings.
• After recording reasons in writing, the court may conduct the inquiry, trial and pronounce judgment as though the accused were present.

What Changed under the New Criminal Law?
Under the earlier Code of Criminal Procedure, 1973:

• Section 82(4) permitted proclamation against an absconding accused.
• Section 317 allowed proceedings in the accused’s absence only in specific circumstances.
• Section 299 permitted recording of evidence when an accused had absconded and there was no immediate prospect of arrest.

However, these provisions did not generally permit a complete criminal trial and pronouncement of judgment in absentia. Consequently, many cases remained pending for years until the accused was arrested.Section 356 of the BNSS now expressly permits a full-fledged trial in absentia, subject to procedural safeguards.

Who Can Be Tried in Absentia?
The provision does not apply to every absent accused. It applies only to a person declared a proclaimed offender under Section 84 of the BNSS.
A person may be declared a proclaimed offender when:

• a proclamation has been issued against them;
• they are accused of an offence punishable with:
  • imprisonment of 10 years or more,
  • life imprisonment, or
  • death penalty;
• they fail to appear at the specified place and time; and
• the court declares them a proclaimed offender after conducting the necessary inquiry.

Thus, trial in absentia is primarily available for serious criminal offences.

Procedural Safeguards under Section 356
Before commencing the trial, the following safeguards must be observed:

• Two consecutive arrest warrants must be issued at an interval of at least 30 days.
• A 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.
• A relative or friend of the accused must be informed about the proposed trial.
• The trial cannot commence until 90 days have elapsed from the date of framing of charges.
• Where the accused has no legal representation, the court must appoint a defence lawyer at State expense.
• The court must record its reasons before proceeding in the accused’s absence.

Protection of the Accused’s Right to a Fair Trial
The BNSS attempts to protect fair-trial rights by providing:

• adequate notice and opportunity to appear;
• compulsory State-funded legal representation;
• judicial scrutiny before declaring a person a proclaimed offender;
• written reasons for proceeding in absentia;
• preservation of witness depositions through audio-visual electronic recording; and
• possible cross-examination of witnesses if the accused later appears.

These measures seek to balance the need for effective prosecution with the accused’s right to legal representation and a fair hearing.

What Happens if the Accused Later Appears?

• If the accused subsequently appears or is arrested, the court may permit the accused to cross-examine prosecution witnesses, where required in the interest of justice.
• Statements of prosecution witnesses recorded earlier may be used as evidence against the accused.
• Audio-visual recordings of witness depositions must be preserved to facilitate review and ensure the transparency and integrity of the proceedings.
•  Why Was Trial in Absentia Introduced?

The provision was introduced to:

• prevent accused persons from indefinitely delaying trials by absconding;
• reduce the pendency of cases involving fugitives and proclaimed offenders;
• ensure that serious criminal proceedings do not remain suspended merely because the accused is outside the reach of the court;
• facilitate the timely recording and preservation of evidence;
• protect witnesses from having to testify after long delays; and
• strengthen the prosecution of terrorists, organised criminals and other offenders who deliberately evade the judicial process.