INTRODUCTION

Recently, the Indian Parliament passed the three New Criminal Laws: The Bharatiya Nyaya Sanhita (BNS), the Bharaitya Nagrik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA) replacing the Indian Penal Code, 1860, the Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 respectively.

The term “in-absentia” is a Latin word meaning “in the absence of”. The legal meaning of the term is that the accused is physically absent during the criminal proceedings against him in the court of law. This provision is said to be in violation of the legal principles of natural justice and audi alteram partem that is to hear the other party. It also prevents the right of the accused to be present in the court during his criminal proceedings and to defend the charges laid upon him.

However, this provision waives such right of the accused to be present in the court during his criminal proceedings if he wilfully evades the proceedings against him. But trial-in-absentia has been reserved only for the heinous offences in all the jurisdictions across the world. Previously, Indian law did not allow conviction, sentencing or trial even for heinous offences.

LEGAL PROVISIONS

The Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023 which is to replace the Criminal Procedure Code (CrPC), 1973 introduced the new provision trial in-absentia of specific kinds of accused in certain cases, while CrPC allowed only the recording of evidences in the absence of the accused and not the trial, conviction or passing the judgement of the case.

As per the Bharatiya Nagrik Suraksha Sanhita (BNSS),2023:

Clause 355 provides for under the first sub-clause trials and enquiries of the accused in the court after the Judge or the Magistrate is satisfied with the reasons so recorded and presence of the accused in not that necessary in the interest of the justice or if there is continuous disturbance in the proceedings by the accused in the Court, if the accused is represented by an advocate the Judge or the Magistrate may dispense and continue with the trial and inquiry in the absence of the accused. Also the Court may direct the presence of the accused in the court at any time during any stage of the proceedings.

The second sub-clause states that if the accused is not represented by an advocate or if the Judge or the Magistrate thinks that the presence of the accused in the Court is necessary he may either adjourn such trial or inquiry or ask for a separate trial of that case.

However, presence in the Court includes presence through audio-video electronic means.

Clause 356 states in the first sub-clause that if the accused wilfully absconds to evade the proceedings against him and if there are no immediate prospects of arresting that accused then in such a case it will be considered as the waiver of his right to be present during his criminal proceedings for a fair trial. The Court then shall after recording the reasons shall carry on with the trial and pronounce the judgement in the same manner if the accused were present. Nevertheless, the proceedings shall not be carried out unless the period of 90 days has been lapsed.

The second sub-clause states that the court shall ensure the following before carrying on with anything stated in the sub-clause 1:

1. Issue two consecutive arrest warrants at least within the 30 days interval.

2. The notice requiring the accused to be present in the Court shall be published in the local and the national newspapers and circulating it on the last known address of the accused and within 30 days of such publication if the accused fails to be present in front of the Court then the court shall continue with the proceedings in his absence.
3. The friend or relative of the accused if any shall be informed about the commencement of the trial.

4. The notice or the information about the commencement of such trial shall be pasted on such parts of the house where the accused resides and shall also be displayed in the police station of the district of the last known residence of the accused.

The third sub-clause states that if the accused is not represented by any advocate for his case then he shall be provided with an advocate for his defence during the proceedings and the expenses will be from the State funds.

The fourth sub-clause states that if the competent Court has examined the witnesses and recorded their dispositions in relation with the court proceedings then such depositions will be treated as the record of evidence against such accused in his absence. Provided that if he is arrested and produced before the Court then he can examine such evidence which was recorded in his absence.

The fifth sub-clause requires the Court to record the evidence that is the examination and deposition of the witnesses through audio-video electronic means, mobile phones are more preferred and the Court shall direct to preserve it in a necessary manner.

The sixth sub-clause provides for proceeding with the trial if in case the accused evades after the trial has been completed and even if he is arrested and appears before the Court at the conclusion of the trial then also judgement can be passed in relation with the case.

The seventh sub-clause states that there shall be no appeal against the judgement passed unless the accused himself presents before the appellate court. Provided that there shall be no appeal pending against the conviction after the expiry of the period of 3 years from the passing of the judgement.

The eighth sub-clause provides for extension of this clause to any absconder mentioned in the sub-clause one of 84th Clause of this Sanhita.

Clause 84 states in the first sub-clause that if the accused absconds after issuing a warrant against him to prevent the execution of such warrant by the Court whether by taking the evidence or not then the Court shall publish a proclamation in writing that the accused is required to be present at such specified place and such specified time by the Court within the period of 30 days after publishing such proclamation.

The second sub-clause mentions the way in which the proclamation needs to be published which is as follows:

1. (a) It shall be displayed in such a conspicuous place of the town or the village where it can be read and where the accused ordinarily resides.

(b) It shall be displayed or pasted on such part of the house of the accused where he ordinarily resides.

(c) It shall be pasted on the conspicuous part of the Court-house.

2. The Court may also direct publication in the daily local newspapers and circulate the same in the village or town of the last known residence of the accused or where he ordinarily resides.

The third sub-clause states that it is to be considered as the authentic evidence of the written publication ensuring that it is complied with clause 1 of sub-clause 2 in the said manner and published on a specified date.

The fourth sub-clause deals with the punishment where the published proclamation under sub-clause 1 is regarding the accused which is imprisonment of 10 years or more, life imprisonment or death as per the Bharatiya Nyaya Sanhita, 2023 or as per any other law that is in force during that time, if the said accused fails to appear at the place and time specified then the Court shall declare him as a proclaimed offender.

The fifth sub-clause states that the provisions of sub-clause 2 and 3 shall be applied to the proclamation made by the Court as they apply to the proclamation made under sub-clause 1.

As per the Bharatiya Sakshya Adhiniyam (BSA), 2023:

Clause 24 states that when a person jointly accused with other such persons of the similar or same offence and if any one of the accused amongst them confesses about the same affecting the one who has confessed as well as other such persons it will still be taken into consideration.

“Offence” includes abetment of or attempt to commit the offence.

If the trial is held in the absence of the accused who absconds the proceedings or who does not comply with the provisions of Clause 84 of the Bharatiya Nagrik Suraksha Sanhita, 2023 then such a trial will be deemed to be a joint trial for the purpose of this clause.

CONCLUSION

While the provision of trial in-absentia is being in force time and again it brings us back to the reconsideration of the fact that utmost importance has been given to the presence of the accused during the trial irrespective of the nature of the offence and the treaties like the International Covenant on Civil and Political Rights (ICCPR) are the proof of the same of which India is a part. The Article 14(3)(d) of  ICCPR mandates the presence of the accused in the criminal case trial which ensures a bare minimum fairness.

REFERENCES

1. The Absentia Dilemma: The Introduction in Trial In-Absentia in Indian Legislation
   https://ohrh.law.ox.ac.uk/the-absentia-dilemma-the-introduction-of-trial-in-absentia-in-indian-legislation
2. Trial In Absentia: A Necessary Evil
   https://www.scconline.com/blog/post/2023/02/07/trial-in-absentia-a-necessary-evil/
3. Trial In Absentia
   https://en.wikipedia.org/wiki/Trial_in_absentia
4. ‘Trial In Absentia’ Under Bharatiya Nagrik Suraksha Sanhita
   https://www.livelaw.in/top-stories/trial-in-absentia-under-bharatiya-nagarik-suraksha-sanhita-247278
5. PRS Legislative Research: The Bharatiya Nagrik Suraksha Sanhita Clauses 355, 356 and 84.
   https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nagarik_Suraksha_Sanhita,_2023.pdf
6. PRS Legislative Research: The Bharatiya Sakshya Adhiniyam Clause 24.
   https://prsindia.org/files/bills_acts/bills_parliament/2023/Bhartiya_Sakshya_(Second)_Bill_2023.pdf