⚠ The dividing line

Sections 228, 229 and 355 relax the requirement of physical attendance while the accused remains represented and the trial remains his. He has chosen not to come, or the Court has excused him, and his advocate stands in his place.

Sections 335 and 356 operate where he has put himself beyond the process of the Court. He is not excused; he has absconded. And because he cannot instruct anyone, these two are correspondingly hedged about.

That is why section 355 requires only that the accused be represented, while section 356 requires proclamation, ninety days, two warrants, publication, notice to relatives and an advocate at State expense before a single witness is examined against him.

Section 355, BNSS 2023

(1) 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.

(2) If the accused in any such case is not represented by an advocate, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.

📖 Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740

Facts: The accused had been permitted to appear through counsel and were not personally present when the stage was reached for their examination on the circumstances appearing in the evidence against them. The question was whether that examination can be conducted otherwise than in the personal presence of the accused, and how the requirement of presence is to be applied in such a case.

Held: The Supreme Court held that the requirement that the accused be personally examined is directed at securing the substance of the right — that he should have a real opportunity to explain the circumstances appearing against him — and not at an inflexible insistence on bodily presence in every case. Where the Court has, in exercise of its power, dispensed with the personal attendance of an accused and permitted him to appear through counsel, and where insistence on his personal presence would cause great hardship without serving the object of the provision, the Court may adopt a practical course: it may permit the accused to answer the questionnaire through his counsel, or by an affidavit, provided the Court is satisfied that he has been made aware of every circumstance and that the answers are genuinely his. The Court cautioned that this is an exception and not the rule: the ordinary course remains personal examination, and the relaxation is available only where personal attendance has properly been dispensed with and no prejudice results.

Ratio: The requirement of personal presence secures the substance of the opportunity to explain, not bodily presence for its own sake. Where attendance has properly been dispensed with and hardship would result, the Court may adopt a practical course — as an exception, not the rule.

Section 335(1), BNSS 2023

If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions; and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found, or his presence cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable.

📖 Jayendra Vishnu Thakur v. State of Maharashtra, (2009) 7 SCC 104

Facts: Evidence had been recorded in the absence of an absconding accused, and on his subsequently being brought before the Court the prosecution sought to use those depositions against him without recalling the witnesses. The question was the extent to which evidence recorded in a person’s absence may be used against him at his trial.

Held: The Supreme Court held that the provision permitting evidence to be recorded in the absence of an absconding accused is an exception to the ordinary rule that evidence must be taken in the presence of the accused, and that it must be strictly construed. The depositions so recorded do not automatically become evidence at the trial: the section permits them to be used only on satisfaction of the conditions it states — that the deponent is dead, incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense or inconvenience. Where the witness is available, he must be examined afresh in the presence of the accused, who is entitled to cross-examine him. The Court emphasised that the right to cross-examine is a component of the fair trial guaranteed by Article 21, and that a person cannot be convicted on testimony he never had an opportunity to test unless the statute expressly and on stated conditions permits it.

Ratio: Evidence recorded in the absence of an absconding accused does not automatically become evidence at his trial. It may be used only on satisfaction of the statutory conditions; where the witness is available he must be examined afresh, with a right to cross-examine.

⚠ Why section 356 was needed at all

Section 335 preserves evidence against the day the absconder is caught. It does not dispose of the case, and if he is never caught the case is never tried.

Section 356 disposes of the case without waiting for that day, on the footing that a man who deliberately absconds to defeat his own trial has waived his right to be present.

The difference in what they do explains the difference in what they require. Section 335 needs only proof of absconding and no immediate prospect of arrest, because nothing is being decided. Section 356 needs a proclamation under section 84, ninety days from the charge, two warrants, newspaper publication, notice to relatives, and an advocate at State expense — because a man is going to be convicted or acquitted without being there.

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 personal attendance has been dispensed with.

2. Section 228 permits the Magistrate to dispense with personal attendance on a summons and permit appearance by advocate, subject to directing attendance later.

3. Sections 229 and 276 permit an accused in a petty case to plead guilty by post and be convicted in his absence.

4. Section 355 permits the Court, for reasons recorded, to proceed in the accused’s absence where his attendance is not necessary in the interests of justice or where he persistently disturbs the proceedings — but only if he is represented by an advocate.

5. Where he is not represented, or the Court considers his presence necessary, it may adjourn or try his case separately: section 355(2).

6. The requirement of personal presence secures the substance of the opportunity to explain. Where attendance has properly been dispensed with, the Court may adopt a practical course — as an exception: Basavaraj R. Patil.

7. Section 335 permits the Court, where the accused has absconded with no immediate prospect of arrest, to examine the prosecution witnesses and record their depositions in his absence.

8. Those depositions may be used against him on his arrest only if the deponent is dead, incapable, untraceable, or not producible without unreasonable delay or expense. Otherwise the witness must be examined afresh with a right of cross-examination: Jayendra Vishnu Thakur.

9. Section 356 is new: a proclaimed offender who has absconded to evade trial may be tried in his absence and judgment pronounced, subject to the safeguards the section prescribes.

10. The dividing line: sections 228, 229 and 355 relax physical attendance while the accused stays represented; sections 335 and 356 apply where he has put himself beyond the process of the Court.