Trial in Absentia the Principle and the Questions | BNSS

Trial in Absentia of a Proclaimed Offender: the Principle Behind Section 356 of the BNSS, 2023, the Theory of Waiver, What Survives for the Absent Accused, and the Questions It Raises

The Sanhita insists on the presence of the accused. Section 308 provides that all evidence taken in the course of the trial shall be taken in the presence of the accused, or, where his personal attendance has been dispensed with, in the presence of his advocate. Section 356 is a departure from that rule, and the way to understand it is to ask what justifies the departure.

The companion topic in this series sets out the conditions and the procedure — the ninety days, the two warrants, the publication, the advocate at State expense, the conditional appeal. This topic is about the principle: why presence matters, why waiver is the only defensible justification for dispensing with it, and what questions the provision will raise as courts begin to apply it.

1. Why Presence Matters

Figure 1: The rule and the departure

An accused who is present hears the witness, knows what is said against him, and can instruct his advocate while it is being said. He can identify what is false, supply the detail that contradicts it, and indicate the question that should be asked. None of that can be done by an advocate working from a brief prepared before the witness opened his mouth.

That is the real content of the right, and it explains why the requirement of presence is not a formality. An absent accused is not merely inconvenienced: he is unable to participate in the one process by which the evidence against him is tested.

Section 356, BNSS 2023 — the justifying words

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 justification is waiver. The section says so in terms. The law does not take the right away; it treats the absconder as having given it up. That is an important distinction, because a right which is waived can be reclaimed, and a right which is taken away cannot.
Which is why the waiver must be made real. A deemed waiver is only defensible if the facts support it. Hence the demands: a proclamation under section 84; absconding to evade trial; no immediate prospect of arrest; ninety days from the charge; two warrants thirty days apart; newspaper publication; notice to relatives; and affixation at his last residence and the police station.
And why he must still be defended. Where he has an advocate, that advocate is heard. Where he has none, one is appointed at State expense. That single requirement is what keeps the proceeding a trial rather than an ex parte inquiry: somebody must be there to test the prosecution case.

⚠ The mischief the provision answers

Under the Code, a proclaimed offender who stayed away could defeat his own trial indefinitely. Evidence could be preserved under the provision corresponding to section 335, but no judgment could be pronounced.

If he was never caught, the case was never decided — and the witnesses grew old, the exhibits deteriorated, and the complainant died without an answer.

The Sanhita’s response is not to abolish the right to be present but to say that a man who deliberately absconds to defeat his own trial cannot afterwards complain that it proceeded without him.

And it preserves the answer to the obvious objection: no appeal lies unless he presents himself before the Court of appeal — so a person convicted in absence is not without remedy, and what he must do to obtain it is the very thing he refused to do at the trial.

2. What Survives, and the Questions That Remain

Figure 2: What the absent accused keeps, and what courts will have to decide

The absent accused keeps a great deal. He keeps the right to be defended, by his own advocate or one appointed at State expense. He keeps the right to have the prosecution prove its case — absence is a waiver of presence, not an admission of guilt. He keeps cross-examination through his advocate and the ordinary rules of evidence. He keeps the right to a reasoned judgment. And he keeps a right of appeal, conditionally, on presenting himself.

But five questions will occupy the courts as the provision comes to be applied, and none of them has an obvious answer on the face of the section.

What proof of absconding to evade trial suffices? The section requires a purpose, not merely an absence. A man who cannot be found because he has migrated for work, or is ill, or is in custody elsewhere, has not absconded to evade his trial — and the difference will have to be established on material rather than assumed from non-appearance.
How is the appointed advocate to take instructions? He defends a man he has never met, on facts only that man knows. He cannot ask whether the witness is telling the truth about a conversation, because he has no idea what was said. The section gives him a role but not the material with which to perform it.
What if the accused appears mid-trial? The section does not say. The answer must be found in its object: if the justification is waiver, and the waiver is withdrawn by his appearance, the trial should presumably continue in his presence from that point — with the question then arising whether the evidence already recorded must be re-heard.
What weight does evidence carry that was never tested on instructions? A court which convicts in absence is acting on cross-examination conducted without the accused’s knowledge of the facts. That is not a reason to disregard the evidence, but it is a reason for particular care in assessing it.
And what if the proclamation was bad? The whole structure rests on section 84. A proclamation issued without the conditions that section requires — a warrant, reason to believe the person has absconded, publication in the prescribed manner — may take the foundation away, and with it everything built upon it.

📖 Noor Aga v. State of Punjab, (2008) 16 SCC 417

Facts: A statute provided for a presumption against the accused in certain circumstances, and the question was how such a departure from the ordinary incidents of a criminal trial is to be reconciled with the constitutional guarantee of a fair trial.

Held: The Supreme Court held that a fair trial is a constitutional guarantee flowing from Article 21, and that the presumption of innocence is a human right, though not one which the legislature can never qualify. Where a statute makes a departure from the ordinary incidents of a criminal trial — by reversing a burden, creating a presumption, or otherwise altering the balance — the Court held that the departure must satisfy the test of reasonableness: it must be proportionate to the object, it must leave the accused a real opportunity to meet the case, and the conditions attached to it must be strictly complied with. The Court held that where such a provision applies, its preconditions must be established beyond doubt before its benefit is available to the prosecution, and that a liberal approach to those preconditions would make the departure itself constitutionally vulnerable. It emphasised that the stricter the consequence, the stricter the compliance required.

Ratio: A fair trial is a constitutional guarantee, and a statutory departure from its ordinary incidents must be proportionate, must leave the accused a real opportunity to meet the case, and must have its preconditions strictly complied with.

That reasoning supplies the approach to section 356. The provision is a departure from a central incident of a fair trial — the presence of the accused. It is a proportionate departure, because it applies only to a man who has deliberately absconded, and because he is defended, the prosecution must still prove its case, and the appeal remains open. But it follows that its preconditions must be strictly complied with: the ninety days, the two warrants, the publication, the notice and the advocate are not procedural niceties. They are what makes the departure defensible.

📖 Kalyani Baskar v. M.S. Sampoornam, (2007) 2 SCC 258

Facts: An accused applied for a document to be sent for expert examination in support of her defence, and the application was refused. The Supreme Court considered what a fair trial requires of a court in relation to the accused’s ability to present his case.

Held: The Supreme Court held that the fairness of a trial is a matter of substance and not of form, and that a court is under a duty to ensure that the accused has a real opportunity to defend himself. It held that the provisions entitling an accused to have process issued, to produce evidence, and to have material examined in support of his defence are not formalities to be refused for convenience: denying him the means of putting his defence before the court is a denial of the fair trial which Article 21 guarantees. The Court held that such an application should be refused only where it is made to vex or delay, and that where it is genuine and material it must be allowed. It emphasised that the court’s duty is not merely to hear the defence but to ensure that the defence is in a position to be presented at all.

Ratio: The fairness of a trial is a matter of substance. A court must ensure the accused has a real opportunity to defend himself, and denying him the means of putting his defence before the court is a denial of the fair trial Article 21 guarantees.

That is the standard against which the appointed advocate’s position will have to be judged. A court conducting a trial in absentia should be alert to the difficulty he faces, should allow him latitude he would not need if he had instructions, and should be slow to treat a point as abandoned merely because an advocate who has never met his client did not take it.

3. Key Takeaways

The position stated shortly

1. Section 308 states the rule: evidence shall be taken in the presence of the accused, or of his advocate where attendance has been dispensed with. Section 356 is a departure from it.

2. Presence matters because an accused who is present hears the witness, knows what is said, and can instruct his advocate while it is being said.

3. The justification for the departure is waiver: absconding to evade trial is deemed to operate as a waiver of the right to be present and tried in person.

4. The law does not take the right away; it treats the absconder as having given it up — which is why the appeal remains open on his presenting himself.

5. A deemed waiver is only defensible if the facts support it, which is why the section demands a proclamation, absconding to evade trial, ninety days, two warrants, publication, notice to relatives and affixation.

6. He must still be defended — by his own advocate, or one appointed at State expense. That is what keeps the proceeding a trial rather than an ex parte inquiry.

7. The mischief answered is real: under the Code a proclaimed offender who stayed away could defeat his own trial indefinitely.

8. A statutory departure from the ordinary incidents of a fair trial must be proportionate, must leave a real opportunity to meet the case, and must have its preconditions strictly complied with: Noor Aga.

9. The fairness of a trial is a matter of substance, and a court must ensure the accused has a real opportunity to defend himself: Kalyani Baskar — which bears directly on the latitude due to an appointed advocate.

10. Five questions remain open: what proves absconding to evade trial; how the appointed advocate takes instructions; what happens if the accused appears mid-trial; what weight untested evidence carries; and what follows if the proclamation was bad.

4. Frequently Asked Questions

What justifies trying a person in his absence?

Waiver. Section 356 provides that the absconding of a proclaimed offender to evade trial shall be deemed to operate as a waiver of his right to be present and tried in person. The law does not take the right away; it treats him as having given it up.

Why does the section impose so many conditions?

Because a deemed waiver is only defensible if the facts support it. The proclamation, the absconding to evade trial, the ninety days, the two warrants, the publication, the notice to relatives and the affixation are what make the deeming reasonable rather than arbitrary.

Is the absent accused defended?

Yes. Where he has an advocate, that advocate is heard; where he has none, one is appointed at State expense. That requirement is what keeps the proceeding a trial rather than an ex parte inquiry.

Does absence amount to an admission of guilt?

No. It is a waiver of presence, not of anything else. The prosecution must still prove its case, the ordinary rules of evidence apply, and the accused retains cross-examination through his advocate and a reasoned judgment.

How strictly must the conditions be complied with?

Strictly. A statutory departure from the ordinary incidents of a fair trial must be proportionate and must have its preconditions strictly complied with; a liberal approach to them would make the departure itself constitutionally vulnerable: Noor Aga v. State of Punjab.

What difficulty does the appointed advocate face?

He defends a man he has never met, on facts only that man knows. A court should allow him latitude he would not need if he had instructions, and should be slow to treat a point as abandoned merely because an advocate without instructions did not take it.

Related Topics

Trial in Absentia of a Proclaimed Offender: Section 356, BNSS
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
Electronic Summons under the BNSS, 2023
Major Changes Introduced by the BNSS, 2023