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Trial In Absentia Of Accused Under The Bharatiya Nagarika Suraksha Sanhita, 2023

The principle of natural justice encompassed in the Latin maxim 'Audi alteram partem' means no one should be condemned unheard. During hearing of the case accused is to be given opportunity of hearing and for the same his presence has to be procured for trial. The principle of fair trial under criminal justice system provides many rights to the accused. One of the much-known rights is that evidence is to be taken in the presence of the accused concerned. Sec. 308 of Bharatiya Nagarika Suraksha Sanhita, 2023 (herein after referred to as B. N. S. S., 2023) protects such right of accused. It is in the interest of justice, society at large, state, victims of offence and accused that there should be speedy trial. Now speedy trial is considered as an essential right guaranteed under the Constitution of India.

The present Cr.P.C. lacks a provision for trial and disposal in absentia. Provision U/s. 299 of Cr.P.C. 1973 is limited one and deposition of prosecution witnesses taken against absconding or unknown accused person(s) can be used only in four situations after his apprehension or discovery. Many times, the accused persons try to take undue benefit of their right of taking evidence in their presence by absconding and thereby speedy investigation and trial gets derailed. A major cause of piling of cases in Indian judiciary is that the provisions in criminal law are not updated to deal with cases where accused has absconded.

The victims, witnesses face a lot of inconvenience for split and piece-meal trial. Absconding of accused affects day to day trial of serious criminal cases, congest Malkhana containing seized items and it aids in docket explosion. Absconding of accused person(s), causes trouble to Courts in issuing processes for production, creates pressure on agencies in executing processes of Court, dealing with multiple bail petitions, bail appeals, revisions, cases for quashing of orders and cases under writ jurisdiction.

In many countries like Italy, Belgium, Czech Republic, Bangladesh, there are statutory provision for trial of accused persons in absentia. In United States the accused after beginning of trial can waive his right to be present during trial. Section 339 (B) of Criminal Procedure Code, 1898 (Bangladesh) provides for trial of accused and recording of evidence in his absence. Such provision was taken notice of by

The Hon'ble Apex Court in [Hussain & another v. Union of India, (2017) 5 SCC 702]. In said case Hon'ble Apex Court directed the Government to consider insertion of similar provision for trial of accused in absentia in appropriate cases. The Hon'ble High Court of Calcutta also stressed importance of trial of absconding accused in absentia in the case of [Kader Khan v. State of West Bengal, decided on 06.05.2022 reported in 2022 SCC Online Cal 1038].

Again, in [Bachche Lal Yadav v. Akhand Pratap Singh 2018, SCC online SC 3813] Hon'ble Apex Court expressed its concern where accused deliberately absconds to avoid trial and derail justice delivery system. Further in [Hari Singh v. State of Jharkhand, 2018 SCC Online Jhar-2534] the High Court asked to amend s.299 of Cr.P.C. to expedite criminal trials.

The directions of Hon'ble Apex Court have obligated the Central Government to introduce an elaborate provision as to trial of accused in absentia in B.N.S.S. 2023. Now let us see when deposition/evidence can be taken in the absence of accused.

Provisions relevant as to hearing in absentia:
Sec. 355 and s. 134 of B.N.S.S., 2023 empowers court to dispense with personal attendance when accused is represented. As per S. 355 B.N.S.S.,2023 personal attendance of accused who persistently disturbs the Court proceeding and represented by a lawyer can be dispensed.

As per Section 335 of B.N.S.S., 2023, (Similar to Sec. 299 Cr.P.C. of 1973) when the accused has absconded and there is no immediate prospect of arresting him, the court competent to trial or commit the case for trial may examine witnesses produced by prosecution and record their depositions. On arrest of absconding accused, such deposition can be given in evidence against the accused in inquiry, trial of case if the deponent is:
  1. dead,
  2. incapable of giving evidence,
  3. cannot be found or
  4. his presence cannot be procured without an amount of delay, expenses or inconvenience which under the circumstances unreasonable.

The section also provides that in cases of offence punishable with death or imprisonment for life committed by unknown person(s), on the direction of the Hon'ble High Court or Sessions judge, any Magistrate First Class may hold inquiry, examine witnesses, and record deposition. The deposition so taken may be given in evidence against the accused subsequently traced if the deponent is dead or incapable of giving evidence or beyond the limits of India.

Sec. 356 of B.N.S.S., 2023 which is an exception to other sections and laws introduces trial of proclaimed offenders in absentia. Now let's see the provision.

What the new provisions say
Section 356 of B.N.S.S., 2023, empowers the Court to proceed with inquiry, trial, and pass judgment in absentia of proclaimed offender. Declaration of proclaimed offender can be done in respect of offences under any law for the time being in force punishable with death, imprisonment for life or imprisonment for ten years or more. Sec. 84(4) of B.N.S.S., 2023 (like Sec. 82(4) of Cr.P.C. 1973) empowers court to declare accused as proclaimed offender. Sec. 84(4) of B.N.S.S., 2023 is wider than the previous corresponding provision. To make it more flexible, Section 356(8) of B.N.S.S., 2023, empowers states to extend Section 356 of B.N.S.S., 2023 to any absconder mentioned in Section 84 (1) B.N.S.S., 2023.

Section 356 applies to 'proclaimed' offender absconding to evade trial and there is no immediate prospect of his arrest. The section applies also when one or more out of several accused persons has/have absconded. His (/their) abscondence shall be deemed to operate as waiver of right of such person to be present and tried in person. The Court is to record its reason for proceeding with trial in absence of proclaimed offender. Such trial is to be considered as if the absconding accused is present and the Court can pronounce judgment.

To ensure fairness and to give sufficient opportunity to the accused to know about the proposal of Court to proceed with trial in his absentia, the section provides some riders. The Court is to comply mandatory process as provided in the section before proceeding trial in absentia.

The Court is required to comply with following steps:
  • Two consecutive warrants of arrest at an interval of at least 30 days must be issued.
  • Court to make paper publication in national or local daily newspaper directing the proclaimed offender to appear before the Court within 30 days and if he fails to appear, the trial shall commence in his absence.
  • To inform relatives, friends, if any, of such accused about the commencement of trial.
  • To affix information on the conspicuous part of the house, homestead in which such person ordinarily resides and display in the Police station about the commencement of trial.
  • To give a mandatory time gap of 90 days between the date of framing of Charge and commencement of trial.

During trial in absentia, if the proclaimed offender has no advocate to represent him, then the Court must provide a defence counsel at the expenses of the state to defend the accused.

The deposition of the witnesses for prosecution recorded by the trial Court or the committal Court can be given in evidence against the proclaimed offender in any inquiry or trial of the offence with which he is charged. If before completion of trial, the accused appears or is produced then at the discretion of the Court he may examine any evidence which had been taken in his absence. Deposition taken U/s. 356 of B.N.S.S., 2023, as far as practicable may be recorded by audio video electronic means and to be kept in such manner as the Court directs. It is to be done to further protect fair trial and interest of justice.

The section also provides, if the accused absconds after commencement of trial, it will not prevent continuance of trial and pronouncement of judgment. The section also provides restriction as to appeal by proclaimed offender. Unless he personally appears before the appellate Court, no appeal shall lie against the judgment under this section. Further, limitation of three years from the date of judgment has been provided for preferring appeal in such cases. No appeal can be preferred on completion of three years from judgment of conviction u/s 356 B.N.S.S., 2023.

Probable drawback
In this regard, a genuine doubt arises as to whether the lawyer representing the absentee accused can be able to properly defend the accused without proper instruction from the accused. However, to protect the right of the accused and to ensure fair trial, courts should see that well experienced lawyer from the panel are engaged in such cases. Overall, any provision regarding trial in absentia would need to balance the interest of justice with rights of accused to ensure fair and transparent trial.

Applicability (whether prospective or retrospective effect)
Section 356 of B.N.S.S., 2023 is a provision of Procedural Law. The sec. 356 of B.N.S.S., 2023 starts with "Notwithstanding anything contained in this Sanhita or any other law for the time being in force, xxx---xxx". Hence this section overrides the 'repeal and savings' provision in Sec. 531 of B.N.S.S., 2023. [Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, AIR 1987 SC 117]. The Sec. 531(2)(b) provides Proclamations issued under Cr.P.C.,1973 are to be treated as proclamations under the corresponding provisions of the Sanhita, 2023.

Hence proclamations already issued can be treated as proclamation under the B.N.S.S.,2023. Law is well settled by Hon'ble Apex Court in a Full bench decision [Anant Gopal Sheorey Vs. The State of Bombay, AIR 1958 SC 915] that a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective.

Though B.N.S.S.,2023, is coming into force on 1st July-2024 as per Gazette Notification S.O. 848(E), dated 23.02.2024 of Ministry of Home Affairs, but Section 356 of said B.N.S.S. 2023 can be applied to offences committed prior to said date and proclaimed offenders already declared so prior to 1st July-2024.

The issue of absconding of accused is one of the major causes for pendency of criminal cases before trial Courts. There are several instances where accused persons by absconding try through unfair means to gain over material witnesses. In case of long delay, there is every possibility that the memory of witnesses gets faded and thereby contradictions creep into their depositions. At times, victims, especially of sexual assault, get discouraged and loose interest in pursuing the case for undue delay and even important witnesses die and official witnesses get transferred or retired.

The provision under Section 356 of B.N.S.S., 2023 is meant to take care of such eventuality when there are several accused to be tried for an offence and one or more has absconded because of which trial of others is likely to be staggered on that count. The provision would compel accused not to abscond but to participate in hearing. The said provision would certainly ensure speedy disposal of cases and it would also lessen pendency in Court and certainly raise rate of conviction.

  • TheBharatiyaNagarikSurakshaSanhita2023.pdf

Written By: Sri Amruta Ranjan Nanda,
LL.M. Judge, Family Court, Rayagada

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