Trial in Absentia of a Proclaimed Offender | BNSS 2023

Trial in Absentia of a Proclaimed Offender: Section 356 of the BNSS, 2023, the Conditions, the Procedure and the Rights of the Absent Accused

Section 356 is one of the genuinely new provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023, and it addresses a problem the Code of Criminal Procedure never solved. A person who is declared a proclaimed offender and stays away could, under the earlier law, defeat his own trial indefinitely. Evidence could be preserved under the provision corresponding to section 335, but no trial could be held and no judgment pronounced. If he was never caught, the case was never decided.

The section proceeds on a single idea: a man who deliberately absconds to evade his trial has, by that act, waived his right to be present at it. The statute says so in terms — the absconding “shall be deemed to operate as a waiver of the right of such person to be present and tried in person”. Everything else in the section is the machinery for making sure the waiver is real.

1. The Conditions

Section 356, BNSS 2023 — the substance

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 were present, and pronounce the judgment.

The Court shall not commence the trial unless a period of ninety days has elapsed from the date of framing of the charge.

The Court shall ensure that the following have been complied with — the issue of two consecutive warrants of arrest within an interval of at least thirty days; publication in a national or local daily newspaper circulating in the place of his last known address, requiring him to appear within thirty days; informing his relatives or friends; and affixing information at a conspicuous part of the house or homestead in which he last resided and at the local police station.

Where the person has an advocate, he shall be heard through that advocate. Where he has none, an advocate shall be appointed at State expense from the legal aid panel.

The depositions and examination of witnesses may be recorded and, on the arrest of the person, may be used against him; where a witness cannot be examined, the deposition may be recorded by audio-video electronic means.

No appeal shall lie against a judgment so pronounced unless the proclaimed offender presents himself before the Court of appeal.

Figure 1: The procedure, step by step

2. The Three Conditions of Entry

He must be a proclaimed offender. A person becomes one only through the machinery of section 84: a warrant must have issued, the Court must have reason to believe he has absconded or is concealing himself so that the warrant cannot be executed, and a written proclamation must have been published requiring him to appear at a specified place and time not less than thirty days from the publication. Mere absence is not proclamation.
He must have absconded to evade trial. The section requires a purpose, not merely a fact. A person who is untraceable because he has moved, or who is ill, or who is in custody elsewhere, has not absconded to evade his trial.
There must be no immediate prospect of arresting him. The Court must be satisfied on material that the ordinary process has been exhausted and that waiting would be futile.

⚠ And then three more conditions of procedure

Ninety days from the framing of the charge. The trial may not commence in absence until that period has elapsed. The charge must therefore have been framed — which means the case has reached a stage at which the Court has already found ground for presuming the offence.

Two consecutive warrants, thirty days apart, and a publication in a newspaper circulating where he last lived, requiring him to appear within thirty days. His relatives or friends must be informed, and the information affixed at his last residence and at the local police station.

An advocate. If he has one, that advocate is heard. If he has none, the Court appoints one at State expense. This is the provision that keeps the exercise a trial rather than an ex parte inquiry — somebody must be there to test the prosecution case.

3. What the Absent Accused Keeps and Loses

Figure 2: The rights that survive, and those that do not

He keeps	He loses
The right to be defended — through his own advocate, or one appointed at State expense	The right to be present, which the absconding is deemed to waive
The right to have the prosecution prove its case. Absence is a waiver of presence, not an admission of guilt	The opportunity to instruct his advocate as the evidence emerges, and to answer what a witness says
Cross-examination through his advocate, and the ordinary rules of evidence	His examination under section 351 — the one point at which the Court speaks directly to him about the case
A reasoned judgment: the Court must record its reasons for proceeding in absence	The chance to give evidence in his own defence under section 353
A right of appeal — but only on presenting himself before the Court of appeal	An unconditional appeal. He cannot challenge the judgment from a distance

⚠ The conditional appeal

The last provision in the section is the balance it strikes at the end: no appeal shall lie against the judgment unless the proclaimed offender presents himself before the Court of appeal.

The logic is consistent with the rest of the section. The law will not hear a man who is still defying its process; but the moment he appears, the door opens and his conviction can be challenged in the ordinary way.

It also answers the most obvious objection to a trial in absence. A person convicted without being present is not left without a remedy. What he must do to obtain the remedy is the very thing he refused to do at the trial — come before the Court.

And the depositions recorded in his absence may be used against him on his arrest, so the evidence taken does not simply lapse.

4. Key Takeaways

The position stated shortly

1. Section 356 is entirely new. Under the Code of Criminal Procedure a proclaimed offender who stayed away could defeat his trial indefinitely; evidence could be preserved, but no judgment could be pronounced.

2. The section rests on waiver: absconding to evade trial is deemed to operate as a waiver of the right to be present and tried in person.

3. Three conditions of entry: he must be a proclaimed offender under section 84; he must have absconded to evade trial; and there must be no immediate prospect of arresting him.

4. Three conditions of procedure: ninety days from the framing of the charge; two consecutive warrants thirty days apart; and newspaper publication requiring appearance within thirty days, with relatives informed and the information affixed at his last residence and the police station.

5. He must be defended. His advocate is heard; if he has none, the Court appoints one at State expense from the legal aid panel.

6. The Court must record reasons in writing for proceeding in his absence, and must be satisfied that it is in the interest of justice.

7. The depositions and examination of witnesses are recorded, may be taken by audio-video electronic means where a witness cannot be examined, and may be used against him on his arrest.

8. He keeps the right to be defended, to have the case proved, to cross-examination through counsel, and to a reasoned judgment.

9. He loses the right to be present, to instruct counsel as the evidence emerges, his examination under section 351, and the chance to give evidence under section 353.

10. No appeal lies unless he presents himself before the Court of appeal. The remedy is open, but only on the terms he refused at the trial.

5. Frequently Asked Questions

When can a person be tried in his absence under section 356?

Where he has been declared a proclaimed offender, has absconded to evade trial, and there is no immediate prospect of arresting him. The Court must record reasons in writing and be satisfied that proceeding is in the interest of justice.

How long must the Court wait before starting the trial?

The trial shall not commence until ninety days have elapsed from the date of framing of the charge. The charge must therefore already have been framed before the section can be used.

What steps must be taken to reach the absent accused?

Two consecutive warrants of arrest at least thirty days apart; publication in a national or local daily newspaper circulating where he last resided, requiring him to appear within thirty days; informing his relatives or friends; and affixing the information at his last residence and at the local police station.

Is the absent accused represented?

Yes. Where he has an advocate, that advocate is heard on his behalf. Where he has none, the Court appoints an advocate at State expense from the legal aid panel. That requirement is what keeps the proceeding a trial rather than an ex parte inquiry.

Can he appeal against the judgment?

Only on presenting himself before the Court of appeal. No appeal lies against a judgment pronounced under section 356 unless the proclaimed offender appears. The remedy is open, but he must come before the Court to claim it.

Can the evidence recorded in his absence be used later?

Yes. The section provides that the depositions and examination of witnesses recorded may, on the arrest of the person, be used against him in the manner the section provides.

Related Topics

Trial in the Absence of the Accused under the BNSS, 2023
Proclamation and Attachment: Sections 84 to 89, BNSS
Right of the Accused to Legal Representation: Sections 340 and 341
General Provisions as to Inquiries and Trials: Sections 337 to 366
Examination of the Accused by the Court: Section 351, BNSS
Appeals under the BNSS, 2023: Chapter XXXI