Re-Imagining Kafka's Courtroom: Unpacking The Procedural Challenges Of Trial-In-Absentia Under The New Criminal Procedure

A trial-in-absentia paints a picture of powerlessness as if this fictional symbolism has been brought to reality, and it is therefore unsurprising that the case against trial-in-absentia is grounded in reasons that range from its colonial roots to blatant violation of the rights of the accused and the consequent increased risk of wrongful convictions. It is also criticized for undermining the social contract theory, which binds the state machinery with the duty to bring the accused as well as the victim to justice. A trial-in-absentia not only raises significant constitutional concerns regarding the 'due process' protection implicit in the right to “life and personal liberty” under Article 21 of the Indian Constitution[4] but also goes against the grain of well-established and universally accepted inviolable principles of criminal jurisprudence and principles of natural justice, since the right to an effective representation, and the right to be heard constitute an indispensable facet of the right to a fair trial.

However, it would be reductive to dismiss the introduction of trials-in-absentia merely as a perpetuation of the draconian colonial legacies. A fair critique must account for arguments in its favour, which surprisingly are also premised upon constitutional concerns related to access to justice and the protection of victim's rights. In this context, it is noteworthy that one of the reasons put forth by the Parliament for enacting new criminal laws was to create a more victim-centric criminal justice system that enhances victim participation, thereby lending support to the arguments in favour of trial-in-absentia. For instance, there may be circumstances in which the accused deliberately absent themselves to evade justice; in such cases, conducting trials in their absence can expedite justice, particularly for victims of sexual abuse. Therefore, it must also be considered that justice delayed is justice denied. Addressing these concerns, even the Supreme Court has, in the recent past, lamented obstruction of speedy justice and proposed amendments in the CrPC to incorporate provisions for trials of absconding accused.[5] The Court highlighted that an absconding accused may severely affect the administration of justice on account of the loss of witnesses and diminished value of evidence with time.[6]

Now, that it has been established that trial-in-absentia cannot be dismissed merely as a ghost of the colonial past, and recognising that it can serve as an effective tool for dispensing justice in appropriate cases, the two perspectives must be seen as competing interests that need reconciliation. The process of reconciliation necessitates a close examination of the procedural aspects of a trial-in-absentia, as it is the procedure that governs the entire judicial proceeding. However, every procedural aspect must be viewed within the context of its substantive aspects, procedural law cannot exist in a vacuum and must be fair, just, and reasonable. Therefore, it must be effectively equipped as an instrument of justice, otherwise all the theories and principles risk becoming mere paper parchment. While substantive law and essential rights guide and inform the procedural law, the latter often receives insufficient attention. Consequently, even a minor technical or procedural fault can have grave implications, potentially defeating the ends of justice, and an everlasting non-closure for the victims and their kin.

Before proceeding, it is pertinent to recognize the subtle but significant distinction between an absconding accused and an absentee-accused simpliciter, as the two terms have distinct legal implications. When an accused is described as 'absconding,' it must be understood within the context of specific provisions of the procedural criminal law, which legally labels an accused as a 'proclaimed offender' whereupon he fails to appear before the court after a proclamation is issued against him, and such proclamations, under section 84 of the BNSS (corresponding to section 82 of the CrPC), are issued in the specified cases pertaining to crimes of grave nature. Therefore, the term 'absconding' is a legal designation with specific implications. Whereas, when an accused is described as 'absentee,' it does not, ipso facto, imply that his absence is on account of his absconding. An absconding accused is indeed an absentee-accused but an accused may also be absent for various other reasons such as non-receipt of summons, ill-health or simply being untraceable. Additionally, the term 'absentee' may also potentially include individuals not yet apprehended, actively attempting to evade law enforcement.

Further, it is important to note that the trial-in-absentia introduced under the BNSS is limited to an accused who has been deliberately absconding or concealing himself and was thereby declared a 'Proclaimed Offender' under section 84 of the BNSS. Simply put, the discussion around trial-in-absentia cannot be generalized and must be located within the context of absentee-accused for whom the trial court has sufficient grounds to believe they are wilfully evading justice. Thus, practically, an accused is declared to be a proclaimed offender only when there is clear evidence of deliberate and malicious intent to hide, which becomes manifest when the accused fails to appear despite repetitive warrants and even after the proclamation has been issued against him. However, it also becomes imperative for the Court to make an additional examination as to whether the non-compliance is truly malicious or if the accused is prevented by external factors from appearing before the Court. Though the relevant provision is not qualified by the term 'maliciously' or any other term of similar connotation, such an inquiry is implicit in the terms “absconding” and “concealing himself” in the two corresponding sections. In the event of the Court failing to make this inquiry, the repercussions can range from an increased risk of wrongful convictions and thwarting of justice. There are, and have been, numerous instances where an influential individual falsely implicates an innocent person by coercion or undue influence, often using monetary incentives or otherwise. Thus, such an inquiry must be understood as a facet of the 'due process' protection envisaged in the Constitution, and actively employed to avoid peculiar but frequent situations of such nature.

Furthermore, such declaration does not apply to accused of all kinds of offences, but specifically, those charged with certain kinds of offences—under the erstwhile section 82(4)of the CrPC, the criterion for such declarations was the nature of offence, focusing on grave offences against body and property like murder and dacoity; in contrast, BNSS broadens the criterion by considering the severity of the punishment i.e., an accused may now be declared a 'proclaimed offender' if the proclamation so published was in respect of an offence punishable with ten years or more, or imprisonment of life, or with death, thereby expanding the range of cases eligible for such declarations, consequently allowing trials to be conducted and to proceed in the absence of the accused. It is indeed concerning that in light of a gradation based on the quantum of punishment, the Parliament has empowered the states to widen the categories of offences, in relation to which such proclamation may be published.[7] Nonetheless, section 356 BNSS, in its present form, does not contemplate a trial-in-absentia per se i.e., the provision itself does not establish a standard approach for conducting such trials; rather, it allows for such trials under the specified situations, subject to certain pre-conditions.

Now that trials-in-absentia have become an undeniable reality, of the criminal justice system they must be understood comprehensively as an aspect of the criminal procedure, including but not limited to its nuances and challenges. A straightforward textual reading of the relevant provision reveals that an accused will not be tried in absentia solely on account of being declared a proclaimed offender. Such trial is subject to two key conjunctive conditions: first, that the accused must have absconded to “evade trial,” and second, there must be no “immediate prospect of arresting him.” These conjunctive conditions, if fulfilled, will be deemed to operate as if the accused has waived his right to be tried in person.

The first condition, with the language so employed, ensures that a proclaimed offender can only tried in absentia if the trial court stands satisfied that he has not only absconded but intentionally fled to evade justice, thereby reinforcing the substantive 'due process' protections embedded in this provision. The second condition acts as a check on law enforcement, ensuring that the police machinery remains diligent in their investigative efforts to locate and apprehend the accused. Consequently, the court is seemingly bound to try such an accused “in the interest of justice” only after it has reasonably confirmed that the proclaimed offender in question has indeed absconded to evade justice, and the investigative authorities, despite their genuine attempts, have failed to secure the accused in a timely manner. This reflects an affirmation of the substantive right of the accused, to be proceeded against following the due process, rather than an infringement upon it. The clear conjunctive conditions for trial-in absentia safeguard the right of the accused to a fair trial, while also allowing an effective administration of justice, thereby striking a balance between the rights of the accused and of the victim, as well as the interests of the state.

In addition to the implicit substantive safeguards outlined in Section 356(1) of the BNSS, there are several pre-conditions for such trial under Section 356(2) of the BNSS, which operate as procedural safeguards. Before the court proceeds to try an accused in his absence, it must ensure that the following conditions are met:

1. There have been two consecutive warrants issued against him within a 30-day interval.
2. A notice of the trial has been published in newspapers circulating in the area of the accused's last known address.
3. Relatives or friends of the accused have been informed prior to the commencement of the trial.
4. Trial information has been conspicuously displayed at some parts of his house and at the local police station where he last resided.

On the other hand, however, it is important to see how a trial-in-absentia can impact the rights and interests of various stakeholders, including but not limited to the victim, witnesses, and sometimes, the co-accused. While it is well-established a trial in absentia deprives the accused of their right to an effective defines—presenting his evidence and cross-examining the prosecution witnesses, all of which are at the core of the criminal justice system—there are additional implications to consider.

From the victim's perspective, the absence of the accused can be counterproductive, since such absence denies the victim satisfaction of the accused being brought to justice and often, a judgment, even if passed against an accused tried in absentia, can lead to doubts being raised upon the legitimacy of the judgment, particularly if the defense was weak or ineffective, thereby undermining the victim's confidence in the judicial process. A weak or ineffective defense may also create a perception of bias in favour of the prosecution, potentially compromising the trial itself and exposing it to the risk of being vitiated. Conversely, when the right of the accused to cross-examination is compromised, it can, albeit inadvertently, weaken the prosecution's case. Without the opportunity being given to the accused to test the veracity of the testimonies of the prosecution witnesses, the reliability of such testimonies is rendered feeble, and thus a robust prosecution case may not be built due to the lack of scrutiny. These potential consequences, arguably, go against the victim-oriented approach sought to be adopted by the new criminal procedure.

In this context, the co-accused face serious repercussions owing trial in absentia of their absent counterpart. Section 356 of the BNSS, provided the other conditions stand satisfied, allows the court to proceed to proceed with a trial in absentia “whether or not [he is] tried jointly” i.e., regardless of whether he is to be tried separately or jointly. This means that an absentee-accused may be tried either individually or the trial may proceed as against the other co-accused as usual, while he is so absent. Here, it is important to consider the newly added Explanation II- to section 24[8] of the Bhartiya Sakshya Adhiniyam, 2023[9], which states that the trial of co-accused being held in the absence of the accused who has absconded or has failed to comply with the proclamation issued under section 84 of the BNSS, is deemed to be a “joint trial” for the purpose of section 24, which renders confession made by one accused relevant as against his co-accused, if such confession affects him—the implication, thus, in light of section 356 of the BNSS, is that a confession of an absentee-accused will be taken into consideration as against his co-accused who are being tried in his absence, if it impacts him. This raises crucial concerns regarding the fairness of justice, as they stand exposed to the potential peril of being adversely affected by the evidence they cannot challenge or cross-examine—a trial in absentia thus prejudices the right to effective representation of not only the absentee-accused but also the other co-accused, severely undermining the foundations of the criminal justice system.

Considering the discussion above, it is thus put forth that the substantive 'due process' protections necessarily be integrated into the conjunctive conditions prescribed for trying an accused in his absence, to not only protect his right but also to prevent such trial from defeating the rights and interests or other stakeholders in the criminal proceedings. It is thus imperative for the Courts to adopt a latitudinal approach to read the term “shall” under section 356 of the BNSS as 'may', thereby allowing, as well as, encouraging the trial courts, to apply their prudence in exercising the discretion to proceed with trials-in-absentia. Given that the said provision is a procedural law, it must, in the “interests of justice,” ultimately align with the constitutional mandate of ensuring due process, and it must come to the aid of justice, rather than defeating it.

To re-imagine Kafka's archaic and oppressive courtroom in light of modern justice, it is crucial to take even colonial-era concepts like trial-in-absentia, and reshape them as instruments of advancing justice, rather than denounce them as mere relics of a bygone era. A despondent Kafka, in The Trial, laments how “it's in the nature of this judicial system that one is condemned not only in innocence but also in ignorance.”—the contemporary criminal justice systems must leave no room for such ignorance or arbitrariness, thus demanding a system that respects and protects transparency. Our Supreme Court has, in widening the scope of the right to life, inter alia, to include the right to a fair trial, as well as, to speedy justice, reinforces the values primarily grounded in safeguarding human dignity, thereby warranting a delicate balance between fairness and efficiency. To prove Kafka wrong not merely in rhetoric, it is the need of the hour to actively work to dismantle any remnants of Kafkaesque dystopia, lingering within our criminal justice system. This necessitates creating a procedure so sufficiently robust that we do not have to await its violation for invoking the vital constitutional procedures, thereby paving way for justice before it is ever compromised.

The author is an Advocate at  Delhi High Court.Views are personal