What is ‘trial in absentia’? | Explained

The story so far: A Special NIA Court in Jammu has issued a non-bailable warrant against Hafiz Saeed, the Pakistan-based chief of the proscribed terror outfit Lashkar-e-Taiba (LeT), in connection with the investigation into the Pahalgam terror attack. The warrant was issued at the request of the National Investigation Agency (NIA). The order was passed by the Special Judge of the NIA Court on July 8, two days after the NIA filed a supplementary chargesheet against Saeed in the Pahalgam terror attack case.Since Saeed is unlikely to appear before an Indian court, the agency is expected to seek a trial in absentia under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which replaced the Code of Criminal Procedure (CrPC). In its supplementary chargesheet, the NIA has charged Hafiz Saeed both in his individual capacity and as the chief of the banned Lashkar-e-Taiba (LeT) and its proxy outfit, The Resistance Front (TRF).“The accused has been charged under various provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, and the Unlawful Activities (Prevention) Act, 1967. The NIA has also invoked provisions relating to waging war against India and hatching a conspiracy from across the border,” the agency said.What is trial in absentia?A trial in absentia refers to a criminal trial conducted in the absence of the accused.Section 356 of the BNSS provides that if a person declared a proclaimed offender has absconded to evade trial and there is no immediate prospect of arrest, the court may treat the accused’s absence as a waiver of the right to be present during the proceedings. After recording its reasons in writing, the court may proceed with the inquiry, trial and pronouncement of judgment as if the accused were present.Under the Code of Criminal Procedure, 1973 (CrPC), the predecessor of BNSS, Section 82(4) of CrPC allows proclamation and attachment of the property of an absconding accused, and Section 317 of CrPC allows the Judge or Magistrate to conduct trial of an accused in his absence in certain specific cases. Section 299 CrPC allows the Judge or Magistrate to record the evidence in absence of absconded accused if there is no prospect of arresting him soon.Those provisions provide a discretion to a presiding officer to conduct an in-absentia trial only when it feels that, firstly, the personal attendance of the accused before the Court is not necessary in the interests of justice, and secondly, the accused persistently disturbs the proceedings in Court. But none of those provisions allowed full-fledged trials in absentia. As a result, trials often remained pending for years until the accused was apprehended.Whom does it apply to?The law does not permit courts to try every accused person in their absence. It applies only to a “proclaimed offender”, as defined under Section 84 of the BNSS.Under Section 84(4), where a proclamation has been issued against a person accused of an offence punishable with imprisonment of 10 years or more, life imprisonment, or death under the Bharatiya Nyaya Sanhita, 2023, or any other law, and the person fails to appear at the specified place and time, the court may, after making such inquiry as it considers necessary, declare the person a proclaimed offender.Thus, trial in absentia is available only in cases involving serious offences punishable with imprisonment of at least 10 years, life imprisonment, or death, where the accused has been declared a proclaimed offender.What are the procedural safeguards under Section 356?Section 356 lays down several procedural safeguards before a trial can commence in the absence of the accused. These include the issuance of two consecutive warrants of arrest within an interval of at least 30 days. A notice must also be published in a local or national newspaper, giving the accused 30 days to appear before the court. In addition, the notice must be displayed at the accused’s last known place of residence, and a relative or friend of the accused must be i