Trial in Absentia under the Bharatiya Nagarik Suraksha Sanhita (BNSS)

Context

The Special NIA Court in Jammu has issued a non-bailable warrant against Hafiz Saeed, the Pakistan-based chief of the banned terrorist organisation Lashkar-e-Taiba (LeT), in connection with the Pahalgam terror attack. As Saeed is unlikely to appear before an Indian court, the National Investigation Agency (NIA) is expected to invoke the trial in absentia provisions under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, bringing renewed attention to this important procedural reform.

Case Background

1. The NIA’s supplementary chargesheet names Hafiz Saeed in his individual capacity and as the head of LeT and its proxy outfit, The Resistance Front (TRF).
2. He has been charged under the Bharatiya Nyaya Sanhita (BNS), 2023 and the Unlawful Activities (Prevention) Act (UAPA), 1967, for offences including waging war against India and criminal conspiracy.

Meaning of Trial in Absentia

1. Trial in absentia refers to a criminal trial conducted without the physical presence of the accused.
2. Under Section 356 of the BNSS, a court may proceed with such a trial if:

1. 1. the accused has been declared a proclaimed offender;
   2. the accused has absconded to evade trial; and
   3. there is no immediate prospect of arrest.

1. After recording reasons in writing, the court may continue with the inquiry, trial, and pronouncement of judgment as though the accused were present.

BNSS and CrPC: Key Differences

1. The Code of Criminal Procedure (CrPC), 1973 did not permit a complete trial in absentia.
2. It provided only limited measures to deal with absconding accused:
   1. Section 82(4): Proclamation and attachment of property.
   2. Section 299: Recording of evidence where there was no immediate prospect of arrest.
   3. Section 317: Dispensing with the accused’s personal attendance in specified cases.
3. Since these provisions did not permit a complete trial, many cases remained pending until the accused was apprehended.
4. Section 356 of the BNSS addresses this limitation by permitting complete trials against proclaimed offenders who deliberately evade the judicial process.

Applicability

1. Trial in absentia applies only to a proclaimed offender declared under Section 84 of the BNSS.
2. A person may be declared a proclaimed offender if:
   1. they are accused of an offence punishable with imprisonment of 10 years or more, life imprisonment, or death; and
   2. they fail to appear despite the prescribed legal process.
3. Accordingly, the provision is confined to offences punishable with 10 years’ imprisonment or more, life imprisonment, or death.

Procedural Safeguards

To safeguard the right to a fair trial, Section 356 prescribes the following safeguards:

1. Two consecutive arrest warrants must be issued at least 30 days apart.
2. A public notice must be published in a local or national newspaper, giving the accused 30 days to appear.
3. The notice must also be displayed at the accused’s last known residence, and a relative or friend must be informed.
4. The trial can commence only after 90 days from the framing of charges.
5. If the accused is not represented by a lawyer, the court must appoint a State-funded defence counsel.
6. Statements of prosecution witnesses recorded before the trial may be admitted as evidence. If the accused is later apprehended, the court may permit cross-examination in the interest of justice.
7. Witness statements and depositions may be recorded through audiovisual electronic means to preserve their authenticity and evidentiary value.

Significance

1. Prevents undue delay caused by absconding offenders.
2. Enables timely adjudication of cases involving terrorism, organised crime, and other serious offences.
3. Strengthens the criminal justice system by discouraging deliberate evasion of judicial proceedings.
4. Balances speedy justice with the right to a fair trial through statutory safeguards.

Conclusion

Section 356 of the BNSS marks a significant reform in India’s criminal justice framework by enabling complete trials against proclaimed offenders who deliberately evade the legal process. At the same time, it incorporates robust procedural safeguards to protect the accused’s right to a fair trial. By ensuring timely adjudication without compromising due process, the provision strikes a balance between judicial efficiency, individual rights, and national security.