How Should Courts Try Proclaimed Offenders? Allahabad High Court Explains 'Trial In Absentia' Procedure U/S 356 BNSS

A bench of Justice Praveen Kumar Giri termed the provision as a 'landmark' one for introducing the concept of 'Trial in Absentia' into the Indian criminal justice system

For context, Section 356 BNSS allows a court to proceed with the inquiry, trial, or judgment of an accused person who has been declared a proclaimed offender and is deliberately evading arrest.

The Court categorically observed that if a person declared as a proclaimed offender absconds to evade trial and there is no immediate prospect of arresting him, it is legally deemed to operate as a 'waiver' of their right to be present and tried in person.

To ensure speedy justice, the Court further streamlined the procedure to prosecute such an absconder and to complete the trial as specified under Section 356 BNSS, in the following way:

• The court can record evidence, examine witnesses, and pronounce a judgment even if the accused is not physically present.
• To ensure transparency and accuracy, depositions and examinations of witnesses should be recorded using audio-video electronic means, such as mobile phones.
• If the absconding accused does not have lawyer, the court must provide an advocate for their defence at the expense of the State.
• The trial cannot commence until at least 90 days have passed since the framing of charges.
• At least two consecutive arrest warrants must be issued with an interval of at least 30 days between them.
• A notice must be published in a national or local daily newspaper circulating in the area of the accused's last know residence.
• The court must inform the accused's relatives or friends about the commencement of the trial.
• Trial information must be displayed at a conspicuous part of the accused's house and at the local police station.

Furthermore, the Court clarified that under Section 356(7) BNSS, an appeal against a conviction in such trials shall only be entertained if the offender presents himself before the appellate court, with an absolute limitation period of 3 years from the date of judgment.

For context, the bench was dealing with an application filed under Section 528 BNSS by one Ravi alias Ravindra Singh, who sought the quashing of a non-bailable warrant issued against him by an Agra court.

The applicant had earlier been granted bail by the High Court in 2021. While charges were framed in his presence in February 2024, he subsequently failed to appear before the trial court after October 2024.

Hence, for his continuous absence, non-bailable warrants were issued against him and eventually, a proclamation under Section 82 and attachment orders under Section 83 CrPC were also passed against him.

While the Court ultimately kept the operation of the impugned NBW in abeyance for two months and gave liberty to the trial court to pass an appropriate order in the event the accused does not cooperate in the trial at every stage, the bench took a broader view of the systemic delays caused by absconding accused persons.

The bench explained the procedure to be adopted at four distinct stages of criminal proceedings during which an accused might abscond. The stages are as follows:-

First- An accused absconds during investigation, and a police report/charge sheet is submitted against him, declaring him a proclaimed offender.

Second- An accused is not arrested during the investigation; either his arrest is stayed by any court of law, or his arrest is not required and he subsequently absconds after summoning and till the conclusion of the trial.

Third- An accused is on bail during investigation, furnishing bail bond and surety and he absconds subsequently after summoning and till the conclusion of the trial.

Fourth- An accused absconds after the framing of a charge while he was released on bail/anticipatory bail, on furnishing his bail bond and surety

For each stage, the High Court mapped out the exact statutory trajectory for each of these scenarios. The bench clarified that at all stages, before a trial in absentia can commence, it must be ensured that all standard coercive measures have been exhausted.

This would include issuing non-bailable warrants (NBWs), publishing proclamations, attaching the absconder's properties under Section 85 BNSS and formally prosecuting them under Section 209 BNS for evading court orders.

Only after these steps are exhausted and an amicus curiae is appointed to represent the absent accused, the HC clarified, the courts can invoke Section 356 BNSS to frame charges and conclude the trial.