Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 880038616
Trial in Absentia under the BNSS (Section 356)
Trial in absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS), specifically governed by Section 356, introduces a structured procedure for conducting a criminal trial when the accused—declared a proclaimed offender—is deliberately absent to evade justice.
Key Features of Trial in Absentia under BNSS
1. Preconditions for Trial in Absentia
A trial in absentia can only proceed if all the following conditions are satisfied:
The accused has been declared a proclaimed offender under Section 84 of the BNSS.
The accused has absconded to evade trial.
There is no immediate prospect of arresting the accused.
If these conjunctive conditions are met, the law deems that the accused has waived their right to be present and tried in person.
2. Procedural Safeguards
To balance efficiency with fairness, BNSS mandates several procedural safeguards before a trial can commence in the absence of the accused:
Issuance of two consecutive arrest warrants at least 30 days apart.
Publication of a notice in a local or national newspaper, giving the accused 30 days to appear.
Informing a relative or friend of the accused about the trial.
Posting a notice at the accused’s last known residence and police station.
3. Waiting Period
The trial cannot begin until 90 days have elapsed after the framing of charges, providing ample opportunity for the accused to appear.
4. Legal Representation
If the absconding accused does not have a lawyer, the court must appoint a defense lawyer at State expense to ensure their rights are protected during the trial.
5. Use of Evidence
Prosecution witness statements recorded before the trial can be used as evidence against the absconding accused.
If the accused later appears or is apprehended, the court may allow cross-examination of witnesses in the interest of justice.
6. Modernization: Audiovisual Recording
The BNSS also modernizes the approach to such trials and provides that the deposition and examination of witnesses may be recorded by audiovisual electronic means, as far as practicable, and that such recording shall be preserved.
This ensures transparency, accuracy, and the integrity of the trial process, and facilitates later review if the accused is apprehended.
Comparison with Previous Law (CrPC)
Under the older Code of Criminal Procedure (CrPC), trials generally required the accused’s presence, with only limited exceptions for recording evidence in their absence.
The BNSS goes further by allowing for the entire trial and judgment to proceed in absence, provided the above safeguards are met.
Purpose and Impact
The introduction of trial in absentia is aimed at preventing undue delays in justice caused by absconding accused and ensuring that serious offenders cannot evade trial indefinitely by simply not appearing in court.
However, the law also recognizes the potential impact on the accused’s right to a fair trial and incorporates multiple safeguards to mitigate these risks.
In summary:
Section 356 of the BNSS allows for the trial of proclaimed offenders in their absence, but only after fulfilling strict preconditions and procedural safeguards designed to protect the rights of the accused while ensuring the justice system is not stalled by willful evasion. The BNSS further modernizes the process by allowing for audiovisual recording and preservation of witness depositions, enhancing transparency and fairness in such trials
