15 Jul Trial in Absentia under BNSS

Why in the News?

The issue of trial in absentia gained attention after a Special NIA Court in Jammu issued a non-bailable warrant against Hafiz Saeed and is expected to invoke Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, allowing trial in his absence as a proclaimed offender.

What is Trial in Absentia?

• Trial in absentia refers to a criminal trial conducted without the physical presence of the accused.
• Under Section 356 of the BNSS, 2023, courts can proceed with the trial of a proclaimed offender who has deliberately absconded to evade justice.
• It marks a significant departure from the earlier criminal procedure, where an accused’s presence during trial was generally mandatory.

Legal Basis

Who Can Be Tried in Absentia?

Trial in absentia is permitted only when:

1. The accused has absconded to evade trial.
2. The accused has been declared a proclaimed offender.
3. There is no immediate possibility of arrest.
4. The offence is punishable with:
   • Imprisonment of 10 years or more,
   • Life imprisonment, or
   • Death penalty.

Procedural Safeguards under BNSS

Before commencing trial in absentia, the court must ensure:

• Issue of two arrest warrants at least 30 days apart.
• Publication of notice in local and national newspapers.
• Notice displayed at the accused’s last known residence.
• Information given to a relative or friend of the accused.
• A minimum waiting period of 90 days before commencement of trial.
• If the accused has no legal representation, the court must appoint a defence lawyer at State expense.
• Proceedings should be recorded through audiovisual electronic means, wherever practicable.

Rights of the Accused

Even during trial in absentia, safeguards exist:

• Right to legal representation.
• Right to a fair trial.
• Court may allow cross-examination of witnesses if the accused later appears or is arrested.
• Witness testimonies recorded electronically are preserved for future judicial review.

Difference Between CrPC and BNSS

Significance

• Prevents fugitives from delaying criminal proceedings indefinitely.
• Strengthens India’s fight against terrorism and organised crime.
• Ensures that absconding offenders cannot exploit procedural delays.
• Enhances efficiency of the criminal justice system.

Concerns

• Possible impact on the accused’s right to natural justice.
• Risk of misuse if proclamation procedures are not strictly followed.
• Ensuring adequate legal representation remains crucial.
• Enforcement of judgments against offenders residing abroad may remain challenging.

Way Forward

• Strict judicial scrutiny before declaring a proclaimed offender.
• Effective use of digital evidence and audiovisual recording.
• Strengthen international cooperation for extradition.
• Ensure legal aid and procedural safeguards are rigorously implemented.
• Maintain a balance between speedy justice and the right to a fair trial.

Key Terms

• Trial in Absentia: Trial conducted without the accused being physically present.
• Proclaimed Offender: A person declared by a court to have absconded after failing to appear despite legal notices.
• BNSS, 2023: Bharatiya Nagarik Suraksha Sanhita, which replaced the Code of Criminal Procedure (CrPC), 1973.

UPSC Prelims Practice Question

Q. With reference to Trial in Absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, consider the following statements:

1. It permits the trial of every accused person in the absence of the accused.
2. It applies only to a person declared a proclaimed offender for offences punishable with imprisonment of 10 years or more, life imprisonment, or death.
3. If the accused has no legal representation, the court must appoint a defence lawyer at the State’s expense.

Which of the statements given above is/are correct?

(a) 1 only
(b) 2 only
(c) 2 and 3 only
(d) 1, 2 and 3

Answer: (c) 2 and 3 only

Explanation

• Statement 1: Incorrect. Trial in absentia is not applicable to every accused; it is limited to proclaimed offenders meeting the conditions under Section 356 of the BNSS.
• Statement 2: Correct. It applies only to proclaimed offenders accused of offences punishable with 10 years or more, life imprisonment, or death.
• Statement 3: Correct. If the absconding accused lacks legal representation, the court must appoint a defence lawyer at the State’s expense.

Therefore, the correct answer is (c) 2 and 3 only.

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