Trial in Absentia under BNSS 2023

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Why in News

A Special NIA Court in Jammu issued a non-bailable warrant against Pakistan-based Lashkar-e-Taiba chief **Hafiz Saeed** regarding the Pahalgam terror attack case.
The National Investigation Agency may now seek his trial in absentia under **Section 356** of the **Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023**.

A trial in absentia refers to a criminal trial that proceeds without the physical presence of the accused person.
Under **Section 356** of the **BNSS**, a court can conduct an inquiry, hold a trial, and pronounce judgment against a proclaimed offender who has purposely absconded and cannot be arrested immediately.

Under the earlier **Code of Criminal Procedure (CrPC), 1973**, rules existed for absconding accused, but they did not allow a full trial leading to a final judgment without them.
**Section 82(4)** of the **CrPC** allowed courts to declare absconding individuals as proclaimed offenders, while **Section 299** permitted recording evidence when arrest was not immediately possible.
**Section 317** of the **CrPC** permitted proceedings without the accused only in limited cases where personal attendance was unnecessary or if the accused repeatedly disrupted court proceedings.
The **BNSS** introduced **Section 356**, establishing a formal procedure to conduct a full trial and deliver a final judgment even when a proclaimed offender is absent.

The provision applies strictly to proclaimed offenders declared under **Section 84(4)** of the **BNSS**, meaning it does not apply to every absent accused.
The accused must be charged with a serious offence punishable by at least **10 years** of imprisonment, life imprisonment, or the death penalty under the **BNS** or another law.
The court must be fully convinced that the proclaimed offender deliberately absconded to avoid trial and that immediate arrest is impossible.
After recording its reasons in writing, the court can treat the deliberate absence as a waiver of the right to be present and continue with trial and judgment.
Before starting the trial, the court must issue two consecutive arrest warrants separated by an interval of at least **30 days**.
The court must publish a mandatory public notice in a local or national newspaper giving the accused **30 days** to appear, while also posting it at their last known residence.
The trial can begin only after a waiting period of **90 days** from the date of framing charges, giving the accused enough time to show up.
Examination of witnesses and depositions should ideally be recorded through audio-visual electronic tools and saved carefully to maintain transparency and facilitate judicial review.