Trial in Absentia Under BNSS Gains Focus After NIA Seeks Proceedings Against Hafiz Saeed in Pahalgam Terror Case

Recent Developments:

• A Special NIA Court in Jammu has issued a Non-Bailable Warrant (NBW) against Hafiz Saeed, the Pakistan-based chief of the banned Lashkar-e-Taiba (LeT), in connection with the Pahalgam Terror Attack investigation.
• The action follows the filing of a supplementary chargesheet by the National Investigation Agency (NIA) naming Hafiz Saeed as a key conspirator acting both individually and as the head of LeT and its proxy outfit The Resistance Front (TRF).
• As Hafiz Saeed is unlikely to appear before an Indian court, the NIA is expected to invoke Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which provides for Trial in Absentia of proclaimed offenders.

Trial in Absentia: Meaning and Legal Basis

Definition:

• Trial in Absentia refers to a criminal trial conducted without the physical presence of the accused, provided the accused has deliberately absconded to evade the judicial process and fulfils the statutory conditions prescribed under law.
• Section 356 of the BNSS, 2023 empowers courts to conduct a complete inquiry, trial and pronounce judgment against a Proclaimed Offender, even in the accused's absence, after complying with mandatory procedural safeguards.

Rationale Behind the Provision:

• The provision seeks to prevent deliberate evasion of justice by fugitives residing within or outside India.
• It aims to ensure that serious criminal trials are not indefinitely delayed merely because the accused remains absconding.
• It strengthens the efficiency of the criminal justice system while preserving the constitutional requirement of a fair trial through statutory safeguards.

Evolution from CrPC to BNSS

Position Under the Code of Criminal Procedure (CrPC), 1973:

• Section 82(4) provided for proclamation and attachment of property of absconding accused persons.
• Section 317 permitted proceedings in the absence of an accused only in limited circumstances where personal attendance was unnecessary.
• Section 299 permitted recording of prosecution evidence if there was no immediate possibility of arresting the accused.
• The earlier framework did not permit a complete criminal trial in absentia, resulting in prolonged pendency of cases involving absconding accused persons.

Change Introduced by BNSS:

• Section 356 of the BNSS introduces, for the first time, a statutory framework for complete inquiry, trial and judgment in absentia against proclaimed offenders, thereby addressing a major procedural gap in the earlier criminal justice system.

Applicability of Trial in Absentia

Eligible Category of Accused:

• The provision applies only to a Proclaimed Offender declared under Section 84 of the BNSS.
• A court may declare a person a proclaimed offender if:
• The accused has absconded despite proclamation.
• The alleged offence is punishable with imprisonment of 10 years or more, life imprisonment, or death.
• The accused fails to appear before the court despite due process and judicial inquiry.

Scope:

• The provision is confined to serious offences and cannot be invoked for every criminal case or ordinary absconding accused.

Procedure Before Commencement of Trial in Absentia

Mandatory Preconditions:

• Two consecutive arrest warrants must be issued with an interval of at least 30 days.
• A public notice must be published in a local or national newspaper, directing the accused to appear within 30 days.
• The notice must be affixed at the accused's last known residence and displayed at the concerned police station.
• A relative or friend, wherever identifiable, must be informed regarding commencement of the trial.
• The court cannot commence the trial until 90 days have elapsed from the date of framing of charges.
• The court must record written reasons establishing that the accused has absconded intentionally and there is no immediate prospect of arrest.

Safeguards to Ensure Fair Trial

Protection of Rights of the Accused:

• If the accused is not represented by a lawyer, the court must appoint a State-funded defence counsel.
• Evidence recorded before commencement of trial may be relied upon during proceedings.
• If the accused is subsequently arrested or voluntarily appears, the court may permit cross-examination of witnesses wherever necessary in the interest of justice.
• Statements of witnesses and judicial proceedings may be recorded using audio-visual electronic means to preserve transparency, authenticity and future judicial review.
• The accused retains the opportunity to participate in subsequent proceedings if apprehended.

Appeal Under Section 356

Special Restriction:

• A person convicted through Trial in Absentia cannot file an appeal unless he or she first appears before the appellate court.
• An appeal against conviction is generally not maintainable after three years from the date of judgment if the proclaimed offender continues to evade the judicial process.

Significance for India's Criminal Justice System

Administrative and Legal Importance:

• Prevents fugitives from frustrating criminal proceedings by remaining outside India's jurisdiction.
• Reduces long-pending criminal trials involving absconding accused.
• Strengthens India's legal response against cross-border terrorism, organised crime and economic offenders.
• Enhances judicial efficiency while balancing procedural fairness through statutory safeguards.
• Aligns criminal procedure with evolving challenges posed by transnational criminal networks.

Constitutional and Legal Issues

Constitutional Considerations:

• Article 21 guarantees a fair procedure established by law, requiring that even absent accused persons receive procedural fairness.
• Principles of Natural Justice, particularly the right to be heard, remain relevant but may be deemed waived where the accused intentionally evades the judicial process after due notice.
• Judicial scrutiny is expected to ensure that Section 356 is invoked only after strict compliance with statutory safeguards.

Challenges and Concerns

Implementation Issues:

• Courts must exercise caution to ensure that the accused has genuinely absconded and is not absent due to unavoidable circumstances.
• Effective international cooperation remains essential for eventual arrest and extradition of fugitives located abroad.
• Improper compliance with procedural safeguards may result in constitutional challenges.
• Continuous judicial oversight is necessary to prevent misuse against individuals who have not intentionally evaded trial.

Relevance for UPSC

GS Paper II:

• Polity and Governance, Criminal Justice Reforms, Rule of Law, Judicial Process, Internal Security.

GS Paper III:

• Cross-Border Terrorism, Counter-Terrorism Framework, National Security, Legal Measures Against Terror Financing and Organised Crime.

Prelims Pointers:

• Section 356 BNSS — Inquiry, Trial or Judgment in Absentia of a Proclaimed Offender.
• Applicable only after declaration under Section 84 BNSS.
• Restricted to offences punishable with 10 years or more, life imprisonment, or death.
• Trial begins only after 90 days from framing of charges and completion of mandatory procedural requirements.

Value Addition for UPSC

International Perspective:

• Several jurisdictions, including France, Italy and certain civil law countries, permit Trial in Absentia subject to procedural safeguards, whereas many common law jurisdictions traditionally require the accused's presence except in limited situations.
• International human rights standards generally accept Trial in Absentia only where the accused has been adequately informed of proceedings, has voluntarily absented himself or herself, and retains an effective opportunity to challenge the conviction upon appearance.
• The introduction of Section 356 BNSS reflects India's effort to reconcile effective criminal justice, national security concerns and constitutional guarantees of due process