Trial in Absentia Under BNSS 2023 Explained

TRIAL IN ABSENTIA UNDER THE BHARATIYA NAGARIK SURAKSHA SANHITA (BNSS), 2023

Why in the News?

• Pahalgam Terror Case: A Special NIA Court in Jammu issued a non-bailable warrant against Hafiz Saeed, following a supplementary chargesheet in the Pahalgam terror attack investigation.
• Legal Provision: Since the accused is unlikely to appear before an Indian court, the NIA is expected to invoke Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, enabling a trial in absentia. This legal mechanism strengthens India’s counter-terrorism framework within the broader Indo-Pacific strategy for regional security.

TRIAL IN ABSENTIA UNDER BNSS

• Meaning: A trial in absentia is a criminal trial conducted without the physical presence of the accused, where the court treats the deliberate absence of a proclaimed offender as a waiver of the right to be present.
• Applicability: Under Section 356 of the BNSS, it applies only to a proclaimed offender accused of offences punishable with 10 years or more imprisonment, life imprisonment, or death, and where there is no immediate prospect of arrest.
• Procedural Safeguards: Before commencing the trial, the court must issue two arrest warrants, publish a public notice, display the notice at the accused’s last known residence, inform relatives or friends, and provide at least 90 days after framing of charges.
• Fair Trial Protection: If the accused lacks legal representation, the court must appoint a State-funded defence counsel, while witness testimonies may be recorded through audio-visual electronic means and preserved.
• Difference from CrPC: Unlike the Code of Criminal Procedure (CrPC), 1973, which only permitted limited proceedings in the accused’s absence, the BNSS expressly allows a full-fledged trial, judgment, and conviction against absconding proclaimed offenders.

SIGNIFICANCE OF THE PROVISION

• Counter-Terrorism Tool: The provision enables speedy prosecution of terrorists, organised crime leaders, and fugitive offenders who evade Indian courts by remaining outside the country’s jurisdiction. This mechanism is crucial amid ongoing strategic competition in counter-terrorism efforts and complements defense cooperation agreements with partner nations.
• Judicial Efficiency: It reduces prolonged delays caused by absconding accused and prevents criminal cases from remaining pending indefinitely.
• Victim-Centric Justice: The provision strengthens victims’ access to timely justice while ensuring that deliberate evasion does not defeat the criminal justice process.
• Due Process Safeguards: Mandatory notices, legal representation, waiting periods, and the possibility of later cross-examination help balance fair trial rights with effective prosecution.
• Deterrence: It discourages accused persons from escaping legal proceedings by fleeing abroad or deliberately avoiding arrest.