In News:

A Special NIA Court in Jammu issued a non-bailable warrant (NBW) against Lashkar-e-Taiba (LeT) chief Hafiz Saeed in connection with the Pahalgam terror attack. The National Investigation Agency (NIA) may seek to conduct his trial in absentia under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

What is Trial in Absentia?

Trial in absentia refers to a criminal trial conducted in the absence of the accused.

Under Section 356 of the BNSS, 2023, a court may conduct the inquiry, trial and pronounce judgment against a proclaimed offender who has deliberately absconded to evade trial and where there is no immediate prospect of arrest.

The provision seeks to prevent serious offenders from defeating the criminal justice system by remaining outside the jurisdiction of Indian courts.

Legal Background

Under the Code of Criminal Procedure (CrPC), 1973, courts could deal with absconding accused but could not ordinarily complete a trial and pronounce judgment in their absence.

Important provisions under the CrPC included:

• Section 82(4): Declaration of a proclaimed offender.
• Section 299: Recording evidence when the accused had absconded and arrest was unlikely.
• Section 317: Permitting proceedings in the temporary absence of the accused in specified situations.

The BNSS, 2023 introduces Section 356, creating a comprehensive legal framework for conducting a full-fledged trial in absentia against proclaimed offenders.

Key Features of Section 356, BNSS

Trial in absentia is subject to strict safeguards:

• Applicable only to proclaimed offenders declared under Section 84(4) of the BNSS.
• Applicable only in offences punishable with at least 10 years' imprisonment, life imprisonment or death.
• The court must be satisfied that the accused has deliberately absconded to evade trial and there is no immediate prospect of arrest.
• Deliberate absence may be treated as a waiver of the right to be present, after recording reasons in writing.

Before commencing the trial, the court must ensure:

• Two consecutive arrest warrants issued at an interval of at least 30 days.
• Publication of a public notice granting the accused 30 days to appear, including publication in newspapers and display at the last known residence.
• A minimum waiting period of 90 days from the date of framing of charges before the trial can begin.

The BNSS also mandates that, as far as practicable, witness examination and depositions should be audio-visually recorded and preserved to enhance transparency and facilitate judicial review.