What is Trial in Absentia under Bharatiya Nagarik Suraksha Sanhita, 2023

What is Trial in Absentia , and can a criminal court really conduct a trial without the accused being present?
With the enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023, Indian criminal procedure has entered a new era where deliberate absconding can no longer paralyse justice. Section 356 BNSS formally introduces the concept of trial in absentia, allowing courts to proceed against proclaimed offenders while embedding strict safeguards to protect the right to a fair trial

Meaning and Concept of Trial in Absentia

A trial in absentia refers to a criminal trial conducted without the physical presence of the accused, where the accused has deliberately absconded or is evading the process of law. Under traditional Indian criminal jurisprudence, the presence of the accused was considered a fundamental component of a fair trial, except for limited situations such as recording evidence under special circumstances.

Section 356 BNSS departs from this position by permitting courts to frame charges, record evidence, hear arguments, and pronounce judgment even when the accused remains absent, provided statutory conditions are satisfied.

Statutory Framework under BNSS

Primary Provision – Section 356 BNSS

Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the core provision governing trial in absentia.

Section 356(1), BNSS
“Where a person declared as a proclaimed offender under section 84 is accused of an offence punishable with imprisonment for ten years or more, or life imprisonment or death, and such person absconds or conceals himself so that he cannot be arrested, the Court may, after recording reasons in writing, proceed to try such person in absentia.”

This provision makes it clear that:

• Trial in absentia is not automatic
• It is restricted to serious offences
• The accused must be a proclaimed offender under Section 84 BNSS

Declaration as Proclaimed Offender – Section 84 BNSS

Trial in absentia is procedurally impossible unless the accused is first declared a proclaimed offender under Section 84 BNSS.

Section 84(1), BNSS
“If any Court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and time not less than thirty days from the date of publishing such proclamation.”

Only after compliance with Section 84, and upon continued non-appearance, can the accused be treated as a proclaimed offender for the purposes of Section 356.

Categories of Cases Where Trial in Absentia Is Permitted

Under Section 356(1), trial in absentia is limited to cases where:

• The offence is punishable with:
  • Imprisonment for ten years or more, or
  • Life imprisonment, or
  • Death penalty
• The accused has been declared a proclaimed offender under Section 84 BNSS
• The accused has absconded or concealed himself to avoid arrest

This restriction reflects legislative caution and ensures that the provision is used only in grave and serious offences.

Mandatory Waiting Period – Section 356(2) BNSS

To prevent misuse, BNSS prescribes a statutory cooling-off period.

Section 356(2), BNSS
“No trial in absentia shall commence unless a period of ninety days has elapsed from the date of framing of charge.”

This ensures that:

• The accused has sufficient opportunity to appear
• The court proceeds only when the absence is deliberate and persistent

Procedural Safeguards Before Commencement of Trial

Section 356 incorporates multiple layers of procedural safeguards, making trial in absentia an exception rather than the rule.

Issuance of Warrants

Repeated attempts to secure the presence of the accused through warrants must fail.

Public Proclamation

The proclamation under Section 84 must be:

• Published in newspapers
• Affixed at the accused’s last known residence
• Displayed at conspicuous public places

Intimation to Family Members

The Court must ensure that information regarding the proclamation is conveyed to:

• Adult family members
• Relatives or associates likely to know the whereabouts of the accused

Right to Legal Representation – Section 356(3) BNSS

Even in the absence of the accused, the right to defence is preserved.

Section 356(3), BNSS
“The Court shall appoint an advocate to represent the accused at the expense of the State if the accused has no advocate representing him.”

This provision reinforces compliance with Article 21 of the Constitution of India and ensures that the trial does not become one-sided.

Recording of Evidence in Absentia – Section 356(4) BNSS

Section 356(4), BNSS
“The evidence recorded during trial in absentia may be used against the accused in any subsequent proceedings if the accused appears or is arrested.”

The court may:

• Record witness testimonies
• Accept documentary and electronic evidence
• Conduct proceedings using audio-video electronic means

Right to Re-Examination of Witnesses – Section 356(5) BNSS

BNSS balances efficiency with fairness.

Section 356(5), BNSS
“Where the accused appears after the recording of evidence, the Court may permit such accused to recall or re-examine any witness in the interest of justice.”

This provision acts as a corrective safeguard, protecting the accused from irreversible prejudice.

Pronouncement of Judgment – Section 356(6) BNSS

Section 356(6), BNSS
“The Court may pronounce judgment in absentia, and such judgment shall have the same force and effect as if the accused were present.”

Thus, conviction or acquittal in absentia carries full legal validity.

Appeal Against Conviction in Absentia – Section 356(7) BNSS

BNSS places a significant restriction on appellate remedies.

Section 356(7), BNSS
“No appeal shall be entertained unless the accused appears before the appellate court.”

Further:

• The accused must appear within three years from the date of judgment
• Failure to do so bars appellate relief

Extension of Trial in Absentia by State Government – Section 356(8) BNSS

Section 356(8), BNSS
“The State Government may, by notification, extend the provisions of this section to such other offences or classes of cases as may be specified.”

This provision gives executive flexibility, but also raises concerns of over-expansion and requires careful judicial scrutiny.

Comparison with CrPC, 1973

Under the Code of Criminal Procedure, 1973:

• No provision allowed a full trial in the absence of the accused
• Only limited evidence recording under Sections 299 CrPC was permitted

BNSS thus marks a clear paradigm shift from evidence preservation to complete adjudication.

Constitutional and Jurisprudential Concerns

Trial in absentia raises critical questions relating to:

• Right to fair trial (Article 21)
• Presumption of innocence
• Effective participation of the accused

However, BNSS attempts to neutralize these concerns through:

• Mandatory legal representation
• Opportunity for re-examination
• High threshold conditions
• Judicial discretion with recorded reasons

Practical Significance and Future Impact

Trial in absentia is expected to:

• Reduce pendency in serious criminal cases
• Prevent abuse of absconding tactics
• Strengthen victim-centric justice

At the same time, courts must exercise exceptional caution to prevent misuse and ensure constitutional compliance.

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FAQs on Trial in Absentia (Section 356 BNSS)

1. What is meant by “trial in absentia” under BNSS?

Trial in absentia refers to a criminal trial conducted in the absence of the accused, where the accused has been declared a proclaimed offender under Section 84 BNSS and continues to evade arrest.

2. Is trial in absentia mandatory once an accused absconds?

No. Trial in absentia under Section 356 BNSS is discretionary, not mandatory. The court must record reasons in writing before proceeding.

3. Which offences qualify for trial in absentia under Section 356 BNSS?

Only offences punishable with:

• Imprisonment for ten years or more, or
• Life imprisonment, or
• Death penalty

4. Can trial in absentia begin immediately after declaring the accused a proclaimed offender?

No. As per Section 356(2) BNSS, the trial can commence only after 90 days have elapsed from the date of framing of charge.

5. Is legal representation compulsory in trial in absentia?

Yes. Under Section 356(3) BNSS, the court must appoint an advocate at State expense if the accused is unrepresented.

6. Can evidence recorded in absentia be used later against the accused?

Yes. Section 356(4) BNSS expressly allows such evidence to be used if the accused later appears or is arrested.

7. Does the accused get a chance to re-examine witnesses later?

Yes. Under Section 356(5) BNSS, the court may permit recall and re-examination of witnesses in the interest of justice.

8. Is judgment passed in absentia legally valid?

Yes. A judgment under Section 356(6) BNSS has the same force and effect as a judgment delivered in the presence of the accused.

9. Can an accused appeal against conviction passed in absentia?

Yes, but only after appearing before the appellate court, as mandated by Section 356(7) BNSS.

10. Can States expand the scope of trial in absentia?

Yes. Section 356(8) BNSS empowers State Governments to extend the provision to other offences by notification.

Procedure for Trial in Absentia under BNSS

Commission of Serious Offence

        ↓

Issue of Arrest Warrant

        ↓

Accused Absconds / Conceals

        ↓

Proclamation under Section 84 BNSS

        ↓

Accused Declared Proclaimed Offender

        ↓

Framing of Charge

        ↓

Mandatory Waiting Period of 90 Days

        ↓

Court Records Reasons in Writing

        ↓

Appointment of Defence Advocate (State Expense)

        ↓

Recording of Evidence in Absentia

        ↓

Opportunity of Recall if Accused Appears

        ↓

Pronouncement of Judgment in Absentia

        ↓

Appeal Only After Personal Appearance

CrPC, 1973 vs BNSS, 2023

Judgment-Based Illustrations 

Illustration 1: Absconding Murder Accused

If an accused charged under Section 302 IPC (now corresponding BNSS offence) absconds for years despite proclamation, the Sessions Court may proceed under Section 356 BNSS, record prosecution evidence, and pronounce judment without waiting indefinitely.

Illustration 2: Accused Appears After Conviction

Where an accused appears after conviction in absentia, the court may allow:

• Recall of witnesses
• Cross-examination
• Limited reopening only to prevent miscarriage of justice, not as a matter of right

Illustration 3: Appeal Bar

An accused convicted in absentia who files an appeal without surrendering or appearing before the appellate court will face outright dismissal under Section 356(7) BNSS.g