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'Trial In Absentia' Under Bharatiya Nagarik Suraksha

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Yash Mittal
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21 Jan 2024 9:57 AM

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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.

Also Read - The Complete Supreme Court Annual Digest- 2023 [Part-XII] (/supreme-
court/supreme-court-annual-digest-2023-256350?utm_source=internal-
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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.

Also Read - Supreme Court Monthly Digest - March 2024 (/supreme-court/supreme-court-

latest-judgments-orders-monthly-digest-march-2024-256349?utm_source=internal-
artice&utm_medium=also-read)

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:

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“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.”

Also Read - Suspension Of Sentence Exception In Serious Offences, S.389 CrPC Not To Be
Invoked Merely Because Convict Was In Jail For Long : Supreme Court (/supreme-
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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 this section unless the proclaimed
offender presents himself before the Court of appeal.”

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Bail Provisions In Bharatiya Nagarik Suraksha Sanhita (New CrPC) : Understanding

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Changes In BNSS To S.156(3) CrPC Power, Cognizance Of Complaints Against

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Pre-Cognizance Hearing Of Accused : Changes Under Bharatiya Nagarik Suraksha

Sanhita (New CrPC) On Magistrate's Cognizance Of Complaints
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Admissibility Of Electronic Evidence Under Bharatiya Sakshya Adhiniyam (New

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Registration Of FIR Under The Bharatiya Nagarik Suraksha Sanhita (New CrPC)
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Major Changes Introduced by Bharatiya Nyaya Sanhita (https://www.livelaw.in/top-

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Bharatiya Nagarik Suraksha Sanhita (New CrPC Bill) Allows Police Custody After
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 New Criminal Laws Continue Colonial Logic, Expand Police Powers : Prof.Anup
Surendranath (https://www.livelaw.in/pdf_upload/bharatiya-nyaya-sanhita-2023-
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Click here to read the Bharatiya Nyaya Sanhita 2023 (new IPC)
(https://www.livelaw.in/pdf_upload/bharatiya-nyaya-sanhita-2023-final-
513877.pdfhttps://www.livelaw.in/interviews/new-criminal-laws-continue-colonial-
logic-expand-police-powers-profanup-surendranath-245974)

Click here to read the Bharatiya Nagarik Suraksha Sanhita 2023 (new CrPC)
(https://www.livelaw.in/pdf_upload/bharatiya-nagarik-suraksha-sanhita-
513878.pdf)

Click here read the Bharatiya Sakshya Bll 2023 (new Evidence Act)
(https://www.livelaw.in/pdf_upload/bharatiya-sakshya-adhiniyam-2023-final-
513880.pdf)

Tags Bharatiya Nagarik Suraksha Sanhita (https://www.livelaw.in/tags/bharatiya-nagarik-

suraksha-sanhita)

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