(This is a guest post by Acharaj Kaur Tuteja)
Trials in absentia are not a novel idea. Jurisdictions across the world have flirted with the idea out of political necessity or emergency. Indian law, however, has resisted this temptation by tethering the right to a fair trial to the physical and participatory presence of the accused. Section 356 marks a departure from that tradition. What does it mean to conduct a criminal trial without the accused? Can the adversarial process survive the absence of one of its central participants? And how, if at all, does this square with the constitutional promise of due process under Article 21?
This post explores Section 356’s structure and underlying presumptions. It demarcates the dangers it presents to a system already overburdened by inequitable procedural protections. The BNSS’s solution leans towards the kind of innovation that is prioritising closure before justice. A hasty conclusion may reconstruct Kafka’s courtroom in modern Indian criminal law, despite the validity of the state’s interest in avoiding delay.
Dissecting Section 356: Text and Structure
Section 356 fails to make a legal distinction between two conflated categories: the absconding accused and the absentee accused. The former is a legal status granted by Section 84 BNSS after meeting specific requirements, mostly post-proclamation wilful evasion. The latter’s absence may be for a variety of reasons, including illness, non-service of summons, coercion, or logistical inaccessibility. There is a chance that the legislation will dismantle these classifications, establishing a loophole whereby absence is assumed to be inherently related to guilt. Unfortunately, the language of Section 356 does not operationalise the subtlety that not all absentees are absconding.
Section 356 sidelines the requirement for deeper judicial inquiry into whether such evasion is wilful, or whether the absence results from coercive tactics or abuse of power by investigating agencies. This opens the door to strategic absences orchestrated by the police or other law enforcement authorities. The absence of terms such as ‘maliciously’ or ‘deliberately’ in the statutory text does not relieve the Court from conducting such inquiries; rather, this omission renders the provision even more susceptible to abuse, where the bare fact of non-appearance becomes sufficient to greenlight trial.
The Illusion of Remedy: Examining of Witnesses and Making an Appeal
The proviso under clause (4) of Section 356 states that if the proclaimed offender is arrested and produced before the Court during trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence. Firstly, the clause imposes a double burden: the accused must prove both a) lack of notice and b) the absence of a wilful evasion. This reverses the usual presumption of innocence and places the accused in a position where they are trying to recover a sliver of participation in proceedings that have already condemned them.
The accused, once labelled a proclaimed offender and tried in absentia, may find themselves returned to a process that has long since passed them by, with key evidentiary stages foreclosed. The danger of an unfair trial is further compounded by clause (6) that states that even if the accused is produced before court or arrested at the conclusion of the trial, the proceedings need not be stalled. The judgement can be pronounced in their absence. Moreover, the right to appeal is curtailed under Section 356(7) wherein the appeal is barred unless the offender presents himself before the appellate court within 3 years of the passing of the judgement.
Undermining Adversarial Ethos
Under Section 356(1) the Court is empowered to proceed with the trial of a proclaimed offender “in the like manner and with the like effect as if he was present”, thereby eliminating any procedural distinction between a full adversarial trial and a unilateral one. The assertion that the accused’s wilful absence amounts to a waiver of rights, becomes a linchpin to justify lack of procedural parity.
This transformation of the trial from adversarial to inquisitorial is not accompanied by the institutional safeguards of the latter. In inquisitorial systems, the judge assumes an investigative role, bound by duties of neutrality and evidence-gathering in favour of both sides. Indian courts, in contrast, are not structured for such a role. The result is a hybrid system that borrows the most coercive aspects of the inquisitorial form while discarding the checks and balances that justify its operation.
Conclusion
There is no denying that trials in absentia address a very real institutional challenge. In an overburdened criminal justice system, where accused persons routinely manipulate safeguards to stall proceedings, Section 356 may act as a corrective. It reaffirms that justice will not be held hostage to deliberate non-appearances.
However, the problem does not justify abandonment of the process. The risk lies in the unstructured application of trials in absentia. The provision, in its current form, rests on a troubling presumption: that a proclaimed offender’s absence is necessarily wilful, and that procedural compliance with notice formalities is enough to substitute meaningful participation. A declaration under Section 84 BNSS is formally premised on wilful concealment or absconding but the statute’s structure outsources that finding to procedural triggers (two warrants, public notice, etc.), not to a substantive inquiry into motive or capacity. In other words, the statute assumes wilfulness from procedural non-compliance. But procedural non-compliance can occur in a number of ways that have nothing to do with intent. The ask isn’t to duplicate the finding of wilfulness – it’s to interrogate how shallow the first one really is. If procedural default alone gets elevated into a legal fiction of intentional evasion, then a second judicial inquiry – before triggering the far more serious consequence of trial in absentia – becomes less redundant and more necessary.
To avoid this turning into a tool of convenience, certain safeguards must be built into the provision. Firstly, the judicial determination of whether the accused has actually absconded should be more than just a declaration. It should follow an inquiry to examine whether the accused had a reasonable opportunity to appear, and whether the evasion is deliberate or due to an extraneous hardship. Secondly, recording depositions via audio-video [as mentioned in Section 356(5)] should be the norm, not a technological afterthought. The attempts to contact the accused in any manner must be furnished duly. Thirdly, the accused should have the opportunity to retrospectively participate in the trial and cross-examine the witnesses if the conviction has been based on their evidence. And lastly, use of Section 356 must be accompanied by periodic judicial review to ensure that the waiver of rights was voluntary in nature.
Trial in absentia, then, is not inherently illegitimate, but it is inherently dangerous. It demands a justice system that can distinguish between tactical evasion and structural absence, between the wilfully hidden and the invisibly marginalised. Without such discernment, Section 356 risks becoming a procedural sleight of hand, manufacturing the illusion of fair process while steadily hollowing it out. The State’s interest in proceeding with trials must not eclipse the constitutional guarantee of a fair one. To that end, the legitimacy of this provision will rest not on how often it is used, but on how scrupulously it is constrained.