'Trial In Absentia' Under Bharatiya Nagarik Suraksha Sanhita

The Bhartiya Nagrik Suraksha Sanhita (“BNSS”) which seeks to replace the existing Cr.P.C. has introduced provisions for conducting in-absentia trial of certain kind of accused. At present, the Cr.P.C. only allows for recording of evidences in absence of the accused but doesn't provide for conducting the trial of an accused and pronouncing the judgment in the absence of an accused. The BNSS however, brought a crucial change to put an accused on trial and pronounce judgment thereof, in his absence. Briefly put, trial in-absentia means to put a person on trial before the court of law in his absence. Apart from the recording of evidences other significant stages of trial are held in the absence of an accused. It can be inferred that the intention of the Parliament is to deprecate the practice of the willful evasion of the trial by certain kind of person such as who are declared as proclaimed offender or when there are no prospects to arrest them in near future. Let's understand the changes brought in new law with respect to in-absentia trial of an accused. Trial may be conducted in-absentia, if accused disturbs the proceedings of court or his personal attendance isn't required Section 355 of BNSS allows the Judge or Magistrate to conduct trial of an accused in his absence. However, the provision provides a discretion to a presiding officer to conduct in-absentia trial only when it feels that firstly, the personal attendance of the accused before the Court is not necessary in the interests of justice, and secondly, the accused persistently disturbs the proceedings in Court. To this effect sub-section (1) to Section 355 of BNSS states as follows: “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.” In-Absentia Trial of Proclaimed Offender, and Pronouncement of Judgment Thereof It is worthwhile to mention that the BNSS allows in-absentia trial of proclaimed offender(s) only. Section 84 (4) of BNSS considers a person as a proclaimed offender who have committed a grave offence i.e., an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023. Section 356 of the BNSS puts a mandatory requirement on the court to proceed with the trial in-absentia of a proclaimed offender under three circumstances i.e., firstly, when a person declared as a proclaimed offender, secondly, has absconded to evade trial, and thirdly, here is no immediate prospect of arresting him. Failure on the part of the accused to adhere to the aforesaid conditions, shall be deemed to operate as a waiver of the right of an accused to be present and tried in-person. However, the court shall commence the trial only after 90 days of framing of charge(s) against the accused. To this effect sub-section (1) to Section 356 states as follows: “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.” Like proceeding for a trial of an accused in his absence, the BNSS has also made provision for the pronouncement of Judgment of in-absentia trial conducted of an accused in its absence. To this effect sub-section (6) of Section 356 of BNSS reads out as: “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.” Further, Section 356 (7) of BNSS forbids challenge to the judgment pronounced in-absence of the proclaimed offender of an in-absentia trial before the Court of Appeal. However, the provision permits challenge to the judgment with a caveat that the proclaimed offender shall himself appear before the court. “No appeal shall lie against the judgment under...

'Trial In Absentia' Under Bharatiya Nagarik Suraksha Sanhita

Yash Mittal

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