Quick answer
Yes, in limited cases. Section 356 of the B.N.S.S. allows a court to hold a trial in absentia (a trial conducted while the accused is absent) and pronounce judgment against a proclaimed offender who has absconded to evade trial when there is no immediate prospect of arresting him. His absconding is deemed to be a waiver of his right to be present and tried in person. The court must record reasons in writing, may not commence the trial until ninety days have passed from the framing of the charge, must follow the notice steps in Section 356(2), and must provide a State-paid advocate if he has none.
The law: Section 356 B.N.S.S.
Section 356 is a new provision. Under the old CrPC, the court could only record the depositions of prosecution witnesses in the absence of an absconding accused (Section 299 CrPC), and use them later in limited situations, such as when the witness had died or could not be found. It did not allow a full trial and judgment in his absence. Section 356 begins with a non obstante clause ("notwithstanding anything contained" in the Sanhita or any other law), so it overrides other provisions that require the accused's presence.
Conditions and safeguards
- Proclaimed offender: the person must have been declared a proclaimed offender. Under Section 84(4) B.N.S.S., this declaration is possible only for an accused of an offence punishable with imprisonment of ten years or more, life imprisonment or death.
- Absconding to evade trial and no immediate prospect of arrest (Section 356(1)).
- Reasons in writing and the trial must be in the interest of justice.
- Ninety days: the trial cannot commence until ninety days have lapsed from the date of framing of the charge (proviso to Section 356(1)).
- Steps under Section 356(2): (i) two consecutive arrest warrants at least thirty days apart; (ii) a notice in a national or local daily newspaper circulating at his last known address, telling him that if he does not appear within thirty days the trial will start in his absence; (iii) informing a relative or friend, if any; and (iv) affixing the information on his house and displaying it in the police station of the district of his last known address.
- Free advocate: if he is not represented, he must be given an advocate for his defence at the expense of the State (Section 356(3)).
Other important rules
- Depositions of prosecution witnesses recorded in his absence may be used against him. If he is arrested or appears during the trial, the court may allow him to examine evidence taken in his absence (Section 356(4)).
- Witness evidence may, as far as practicable, be recorded by audio-video electronic means, preferably mobile phone (Section 356(5)).
- Once the trial has commenced, his voluntary absence does not stop it, even if he is arrested or appears at its conclusion (Section 356(6)).
- No appeal lies unless he presents himself before the appellate court, and no appeal against conviction lies after three years from the judgment (Section 356(7)).
- The State may, by notification, extend the section to any absconder under Section 84(1) (Section 356(8)).
Absence under Section 355 and Section 356 compared
| Point | Section 355 B.N.S.S. | Section 356 B.N.S.S. |
|---|---|---|
| Who | Any accused whose personal attendance is not necessary, or who persistently disturbs proceedings | A proclaimed offender who has absconded to evade trial |
| Lawyer | Accused must be represented by an advocate | State-paid advocate if he has none |
| Nature | Court's discretion to dispense with attendance | Deemed waiver of the right to be present, after strict safeguards |
Aadil is charged with an offence punishable with life imprisonment. He disappears, and after a proclamation under Section 84 the court declares him a proclaimed offender. Two arrest warrants issued thirty-five days apart fail, a newspaper notice is published, his brother is informed, and notices are affixed on his house and at the police station. More than ninety days after the charge was framed, the court records its reasons and starts the trial with a State-paid advocate defending Aadil.
Exam point
Section 356 B.N.S.S.: trial in absentia only of a proclaimed offender who absconds to evade trial; 90 days after charge, two warrants at least 30 days apart, newspaper notice, State-paid advocate; appeal only if he surrenders to the appellate court.
