The Dawn of Trial in Absentia under India's New Criminal Code

The Dawn of Trial in Absentia under India's New Criminal Code

A Special National Investigation Agency (NIA) Court in Jammu issued a non-bailable warrant against Pakistan-based Lashkar-e-Taiba (LeT) chief Hafiz Saeed in connection with the Pahalgam terror attack case. Facing severe charges under the Bharatiya Nyaya Sanhita (BNS), 2023, and the Unlawful Activities (Prevention) Act (UAPA), 1967, Saeed remains physically out of reach of Indian law enforcement. Rather than allowing the prosecution to stall indefinitely, the NIA is expected to seek a trial in absentia under Section 356 of the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. This legislative evolution shifts how the sovereign handles fugitive offenders who use international borders to escape domestic prosecution.

Understanding Trial in Absentia

A trial in absentia refers to a criminal trial conducted from inception to final judgment without the physical presence of the accused in the courtroom. Under Section 356 of the BNSS, if an individual is officially declared a "proclaimed offender" and has deliberately absconded to evade the judicial process with no immediate prospect of arrest, the court is legally empowered to proceed.

The primary objective of this legal tool is to ensure that the criminal justice system is not held hostage by fugitives. By treating deliberate, calculated evasion as a constructive waiver of the right to be physically present, the law allows the court to record evidence, examine witnesses, and pronounce a binding final verdict.

The Evolution: Transitioning from CrPC to BNSS

The previous Code of Criminal Procedure (CrPC), 1973, adopted a highly restrictive approach toward trials where the accused was missing. While it contained provisions to manage absconders, it systematically stopped short of allowing a full-fledged trial that could culminate in a conviction or acquittal.

  • Section 82(4) of the CrPC: Provided the mechanism to declare an absconding individual a "proclaimed offender" but did not offer a pathway to conclude the trial itself.
  • Section 299 of the CrPC: Permitted the court to record depositions and preserve witness testimonies in the absence of an absconder, but only as a protective measure to ensure the evidence did not vanish before the accused was eventually caught.
  • Section 317 of the CrPC: Allowed proceedings to continue in the absence of an accused under highly restricted circumstances, such as when the accused's presence was deemed unnecessary for a specific hearing or if they continuously disrupted the court.

Consequently, under the CrPC, if a high-profile terrorist or economic offender fled the country, the trial was effectively frozen, resulting in a massive backlog of unresolved, decades-old cases. Section 356 of the BNSS completely rewrites this script, establishing a specialized, self-contained statutory framework for running full-scale trials and delivering final judgments in absentia.

Applicability and Threshold of Severity

To prevent potential overreach, the legislature did not make trial in absentia a default mechanism for minor infractions. Its application is restricted by strict statutory thresholds:

  • Status of Proclaimed Offender: The accused cannot simply be "missing" or "not responding" to a summons. They must be formally declared a "proclaimed offender" under Section 84(4) of the BNSS following a thorough judicial inquiry.
  • Severity of the Offence: This fast-track framework is reserved solely for grave offences. The underlying crime must carry a statutory punishment of at least 10 years of imprisonment, life imprisonment, or the death penalty under the BNS or any other prevailing penal statute.
  • Deliberate Absconding: The prosecution must prove, and the court must be satisfied, that the individual has intentionally fled the jurisdiction of the court specifically to evade trial, and that there is no realistic prospect of their arrest in the near future.

Key Statutory Safeguards Under Section 356

Because conducting a trial without the accused directly challenges traditional notions of natural justice, Section 356 of the BNSS embeds layered procedural safeguards designed to protect the integrity of the process:

  • The Rule of Two Consecutive Warrants: The court must first issue two consecutive arrest warrants at an interval of at least 30 days. This establishes a clear paper trail demonstrating that the state made reasonable efforts to apprehend the individual.
  • Mandatory Public Notice: The court must publish a prominent notice in both local and national newspapers, giving the accused a final 30-day window to present themselves. Additionally, a physical copy of this notice must be posted at the accused's last known address, and a relative or friend must be formally notified.
  • The 90-Day Waiting Period: To prevent rushed, knee-jerk convictions, the trial cannot legally commence until a full 90 days have elapsed from the formal framing of charges. This gives the accused ample opportunity to surrender or coordinate their legal defense.
  • State-Funded Defence Counsel: If the accused remains absent and has no legal representation, the court is legally required to appoint a defense lawyer at the state’s expense to represent the accused's interests during the trial.
  • Preservation via Audiovisual Means: To ensure transparency and ease of subsequent judicial review, the examination of witnesses and depositions must, as far as practicable, be captured and preserved via secure audiovisual electronic methods.

Constitutional Validity and Natural Justice

The introduction of Section 356 has ignited a debate within constitutional law circles regarding the balance between swift justice and fundamental human rights. Detractors argue that trials in absentia run counter to the principles of natural justice specifically the right of an accused to hear the evidence against them, instruct their counsel in real time, and cross-examine prosecution witnesses directly. In the international arena, Article 14(3)(d) of the International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory generally guarantees every individual the right to be tried in their own presence.

However, defenders of the BNSS argue that these rights are not absolute and can be waived by the deliberate conduct of the accused. Under Article 21 of the Indian Constitution, the "procedure established by law" must be just, fair, and reasonable. The Supreme Court of India's ruling in Shreya Singhal v. Union of India (2015) emphasized that annoyance or insult alone cannot criminalize speech, and in Kaushal Kishore v. State of UP (2023), it clarified the exhaustive nature of reasonable restrictions. By embedding strict, sequential safeguards such as public notices, waiting periods, and state-appointed counsel, the BNSS seeks to establish a highly balanced, constitutionally resilient procedure that values judicial finality without sacrificing basic fairness.

Global Challenges and the Enforcement Gap

While Section 356 provides India’s domestic courts with a tool to conclude cases against elusive fugitives, executing these judgments on a global scale remains a complex challenge. Extradition processes and the deportation of convicted proclaimed offenders continue to depend heavily on bilateral extradition treaties and mutual legal assistance frameworks.

Many Western jurisdictions, such as the United Kingdom and various member states of the European Union, maintain strict human rights standards that view trials in absentia with skepticism. If a foreign court determines that an Indian conviction was secured through a trial where the accused was not physically present, it may refuse extradition requests on the grounds of a violation of fair trial principles. Consequently, while a domestic trial in absentia can bring political and legal resolution within India, it does not automatically guarantee that international partners will enforce the resulting sentence.

Conclusion

Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023, is a major procedural upgrade that addresses a long-standing vulnerability in India's criminal justice system. By allowing full trials to proceed against proclaimed offenders who intentionally flee the law, the Indian state sends a clear message that justice cannot be avoided simply by crossing borders.

As courts begin to apply this tool to high-profile fugitives like Hafiz Saeed, the balance between speed, finality, and constitutional fairness will be closely watched. To maintain international credibility and successfully navigate global extradition challenges, the Indian judiciary must ensure that every procedural safeguard under Section 356 is applied with absolute precision.