Prakant Law Offices

Authored by Ms. Kirtika Goyal (Associate at Prakant Law Offices) & Mr. Aryan Chowdhury (Student at National Law University Odisha and Intern at Prakant Law Offices)


Introduction

Bharatiya Nagarik Suraksha Sanhita (hereinafter BNSS 2023) was ushered in with the promise of inclusivity and progressiveness. One interesting addition under BNSS 2023 is trials in absentia. Trial in absentia refers to conducting a criminal trial without the presence of the accused person in court. Earlier, Indian law did not allow trial, conviction or sentencing of the person in absentia, even for heinous offences. Though this is an interesting addition which will expedite the trial and ensure continuity in criminal justice, its induction diminishes the line of the well-established principle of audi alteram partem, meaning let the other side be heard too, which is considered as a cornerstone pillar for fair trials in India.

The New Regime under BNSS

There are three sections which when read together, provide for trials in-absentia under the BNSS 2023:

  • Section 355[1] (Provision for inquiries and trial being held in the absence of accused in certain cases). This section provides that the Judge or the Magistrate, after recording his reasons, may dispense with the personal attendance of the accused, either for the interest of justice or where the accused persistently disturbs the proceedings of the Court, if the accused is represented by an advocate, and may call upon the accused whenever required. If the accused is not represented by an advocate, then the Judge or Magistrate, after recording his reason, either adjourn the proceeding or take up the case of the accused separately.
  • Section 356[2] (Inquiry, trial or judgment in absentia of proclaimed offender): This section allows for trials in absentia for proclaimed offenders who have absconded to avoid being tried. This section applies to offences that are punishable by death, life imprisonment, or imprisonment of 10 years or more. 

Conditions for a trial in absentia under this section

  • The accused must be a proclaimed offender. 
  • The accused must have absconded to avoid being tried. 
  • There must be no immediate prospect of arresting the accused. 
  • A waiting period of 90 days must have passed since the charge was framed. 
  • The court must issue two consecutive arrest warrants, at least 30 days apart. 
  • A notice must be published in a local or national newspaper, informing the accused of the trial and the consequences of not appearing .
  • S. 392(6)[3] (Judgment): This section provides that where the personal attendance of the accused has been dispensed with, then the judgement can be delivered in his absence, provided that where there is more than one accused person, and any one of them is absent by any reason, then too the judgement can be delivered. Similarly, sub-clause (7) states that no judgement delivered will be invalid merely because of the absence of the accused for any reason thereof.

What the Code of Criminal Procedure (CrPC), 1973 served for in-absentia trials

CrPC did recognise certain exceptional cases where the accused was not present, such as separation of trial and recording of evidence for the sake of fair trial. The CrPC, like the BNSS, mandated that all evidence must be adduced in the presence of the accused, or when their personal attendance is not required, their pleader (now changed to advocate). However, two exceptions were contemplated-

  • Section 299 Cr.P.C[4]  provided that the general rule can be foregone where the accused has absconded, and there is no immediate prospect of arrest,
  • Section 317 Cr.P.C[5] meanwhile provided that when the personal attendance is not necessary in the interest of justice or when the accused has persistently disturbed the proceedings of the Court, then evidence be adduced in accused’s absence.

A similar scenario as that under the BNSS had been envisaged under CrPC for the two exceptions, hence for the sake of coherency, we shall not mention the same here.

However, it is pertinent to mention that the CrPC never envisioned a scenario where a trial could be started and ended without the accused’s presence.

Indian Jurisprudential Development on Trials in-Absentia

Trials in-absentia do not find much discussion in the Courts. However, in Hussain and Anr. v Union of India AIR 2017 SC 1362, the Court, while hearing on regulations for a fair trial, observed that trials in-absentia would considerably reduce delay in trials where one of the co-accused is absent while referring to the Code of Criminal Procedure, 1898 of Bangladesh. Given that trial in-absentia is a new concept with limited legal development in Indian jurisprudence, we must understand its development by referring to European developments, from where we can understand its implications.

The International Perspective

In Sejdovic v Italy [2006] ECHR 181, the European Commission of Human Rights (hereinafter ECHR) iterated that the mere fact that an accused was represented by a State-appointed advocate does not amount to a fair trial, when the accused himself was not aware of the trial due to the government’s assumption that the accused had absconded due to his act of changing his surname and running away with his fiance. The accused must necessarily be aware of the trial against him for a trial in absentia be valid.In Medenica v Switzerland (Application No. 20491/92 ECHR 2001-VI), where the accused brought their fate upon himself by getting a restraining order in the US and appointed his lawyer for his trial in Switzerland, the ECHR held that he was well aware of his trial.

Speedier Trial v. Right to be Heard

Why speedy trial is important?

  • Speedier disposal of trials where one of the co-accused is absent, as judgment can be delivered irrespective of the fact,
  • Higher rates of conviction in cases where the accused wilfully does not answer to the Proclamation and impedes in the due process of law,
  • Easier determination of evidence due to the accused’s non-presence leading to probable low intensity in cross-examination.

What are the possible short comings?

  • One major concern is how courts declare someone as absconding. A proclaimed offender may be unaware of their trial and might not be at their residence or in contact with anyone. This gap in the process is significant. Furthermore, police may neglect proper investigations, leading to trials in absentia and making convictions easier.
  • The BNSS 2023 limits Proclamations to the Place of Residence and surrounding areas, which could violate the rights of the accused, who may be unaware of the Proclamation if they have lost contact or left their usual location.
  • One important concern is whether a government-appointed Advocate can be as well-prepared as an accused-appointed Advocate, which could hinder the defense’s ability to prepare thoroughly and infringe upon fair trial procedures.
  • The maxim of audi alteram partem may be violated if the accused is absent during court proceedings regarding their innocence. Even if they are presented later, the court has discretion on allowing cross-examination of previously admitted evidence. This limits the accused’s ability to challenge evidence, reducing their chances to prove their innocence.
  • The Court has discretion to decide when the personal attendance of the accused is unnecessary, particularly due to persistent disruptions. It is up to the Courts to determine the extent of this discretion. Additionally, no appeal provision exists for the removal of the accused for causing disturbances, leaving uncertainty about whether this can be contested in the same trial or a separate case.

Conclusion

The implications of conducting trials in-absentia are noteworthy within the Indian legal framework, as they have the potential to significantly reduce delays caused by the willful absence of the accused or instances where the defense and prosecution may collaborate to prolong proceedings. While this approach represents a positive advancement toward expediting trial processes, it is important to recognize that it raises concerns regarding the right to a fair trial, particularly in the absence of adequate safeguards. The new BNSS 2023 can be perceived as stringent towards the accused, granting the Court considerable discretion in its decisions. Nevertheless, it is essential for the Court to adhere to the fundamental principle that the trial serves as a crucial opportunity for the accused to establish their innocence, rather than merely a platform for the prosecution to demonstrate guilt.


[1] 355. Provision for inquiries and trial being held in absence of accused in certain cases — (1) At any stage of an inquiry or trial under this Sanhita, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by an advocate, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by an advocate, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

Explanation — For the purpose of this section, personal attendance of the accused includes attendance through audio-video electronic means.

[2] 356. Inquiry, trial or judgment in absentia of proclaimed offender — (1) Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment:

Provided that the Court shall not commence the trial unless a period of ninety days has lapsed from the date of framing of the charge.

(2) The Court shall ensure that the following procedure has been complied with before proceeding under sub-section (1), namely: —

(i) issuance of two consecutive warrants of arrest within the interval of at least thirty days;

(ii) publish in a national or local daily newspaper circulating in the place of his last known address of residence, requiring the proclaimed offender to appear before the Court for trial and informing him that in case he fails to appear within thirty days from the date of such publication, the trial shall commence in his absence;

(iii) inform his relative or friend, if any, about the commencement of the trial; and

(iv) affix information about the commencement of the trial on some conspicuous part of the house or homestead in which such person ordinarily resides and display in the police station of the district of his last known address of residence.

(3) Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate for his defence at the expense of the State.

(4) Where the Court, competent to try the case or commit for trial, has examined any witnesses for prosecution and recorded their depositions, such depositions shall be given in evidence against such proclaimed offender on the inquiry into, or in trial for, the offence with which he is charged: Provided that if the proclaimed offender is arrested and produced or appears before the Court during such trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence.

(5) Where a trial is related to a person under this section, the deposition and examination of the witness, may, as far as practicable, be recorded by audio-video electronic means preferably mobile phone and such recording shall be kept in such manner as the Court may direct.

(6) In prosecution for offences under this Sanhita, voluntary absence of accused after the trial has commenced under sub-section (1) shall not prevent continuing the trial including the pronouncement of the judgment even if he is arrested and produced or appears at the conclusion of such trial.

(7) No appeal shall lie against the judgment under this section unless the proclaimed offender presents himself before the Court of appeal: Provided that no appeal against conviction shall lie after the expiry of three years from the date of the judgment.

(8) The State may, by notification, extend the provisions of this section to any absconder mentioned in sub-section (1) of section 84.

[3] 392. Judgment — (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time not later than forty-five days of which notice shall be given to the parties or their advocates…(6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that where there are more accused persons than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence.

(7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his advocate on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their advocates, or any of them, the notice of such day and place.

[4] 299. Record of evidence in absence of accused — (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try 1 [, or commit for trial,] such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India.

[5]317. Provision for inquiries and trial being held in the absence of accused in certain cases — (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.


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