HC lays down step-by-step rules for trial in absentia under BNSS

Prayagraj: In an important judgment, the Allahabad high court has provided an exhaustive step-by-step procedure for conducting criminal trials in the absence of a proclaimed offender as per Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The court termed the provision a landmark one for introducing the concept of 'trial in absentia' into the Indian criminal justice system.

Section 356 of BNSS allows a court to proceed with the inquiry, trial, or judgment of an accused 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, Justice Praveen Kumar Giri further streamlined the procedure to prosecute such an absconder and to complete the trial as specified under Section 356. Firstly, 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 a lawyer, the court must provide it 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 known 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) of 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 three years from the date of judgment.

The court was dealing with an application filed under Section 528 of 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 HC in 2021. While charges were framed in his presence in Feb 2024, he subsequently failed to appear before the trial court after Oct 2024. Hence, 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.

In its May 5 judgment, the court said a trial in absentia can begin only after all standard coercive measures are exhausted. This includes issuing NBWs, publishing proclamations, attaching the absconder’s properties under Section 85 of BNSS, and prosecuting them under Section 209 of BNS for evading court orders. Only after these steps and appointment of an amicus curiae to represent the absent accused, can courts invoke Section 356 of BNSS to frame charges and conclude the trial, the high court clarified.
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