What is Trial in Absentia?

Starting July 1st, the Bhartiya Nagrik Suraksha Sanhita (BNSS), which aims to replace the Code of Criminal Procedure commonly called the Criminal Procedure Code (CrPC), will introduce a new provision for conducting trials in absentia for certain types of accused individuals. It is important for readers to be aware of this significant change.

Definition as per the BNSS

Section 356 of the Bharatiya Nagarik Suraksha Sanhita (II) 2023 defines trial in absentia as “when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he were present, under this Sanhita, and pronounce the judgement”.

Purpose of the Trial in Absentia

The primary goal of a criminal trial is to achieve justice and uphold the rule of law. An essential right of the accused is to be present in court, which is integral to the concept of a fair trial. “Trial in absentia” originates from Latin, meaning “trial in absence.” This practice involves conducting a trial when the accused is willfully absent and has forfeited their right to be present. Essentially, it entails proceeding with the criminal trial without the accused being present. The process of criminal trials is often hindered when the accused absconds, and the rationale behind trial in absentia is to prevent the accused from obstructing the administration of justice by absconding from the trial.

Home Minister’s Comments

The Honourable Home Minister, Amit Shah, has held that, with the help of the new criminal laws, we can increase pressure on extradite the absconders. “Regardless of their presence, the trial will proceed, they will be punished, and their property will be confiscated.” He added that “once convicted, we can push for their extradition, increasing the likelihood of their return.”

Addressing the provision for trial in absentia, Shah stated that individuals who have fled the country after committing crimes, killing hundreds in bomb blasts, or hiding in Pakistan or other locations after carrying out terror attacks will not be exempt from justice. Shah emphasized that convicting these fugitives will bolster India’s case for their extradition.

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