Trial In Absentia- A Tool For Justice Or Injustice?

For a fair, expeditious and a successful criminal justice administration the presence of both the parties to a criminal trial (that is the prosecution and the accused) is quintessential. And the predicament arises when one of the parties to a criminal trial either flees away or absconds especially in the light of the Article 14 (3) (d) of the International Covenant on Civil and Political Rights (ICCPR) to which India is a party. Article 14 (3) (d) of ICCPR entitles everyone to be tried in his presence and to defend himself in person or through legal assistance of his choice. On the similar lines, Article 6 (3) of the European Convention on Human Rights and Fundamental Freedoms also entitles a person charged with criminal offence with the same right of right to defend which further has been interpreted to mean the right of the accused to take part in the hearing.^[2] Hence, it can be inferred that one of the immutable principles of justice is that the accused be present at his trial for the meaningful exercise of his right to defence.^[3] However, in this context the irrefutable fact is the proclivity of fleeing away or absconding on the part of the accused prevalent to a vivid level in the present criminal law arena. The testimony to whose existence can be gathered from the views expressed by the Apex Court and the Reports of the Law Commission of India. In the cases of Surya Baksh Singh v. State of Uttar Pradesh^[4] it was observed that:

“There is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. The criminal justice delivery system is being held to ransom by convicts who have developed the devious and dishonest practice of escaping punishment or sentence by filing appeals, obtaining bail or suspension of sentence and thereafter disappearing beyond the reach of the arms of the law. Given the woeful success rate of the prosecution, if even the relatively niggard number of convicts is permitted to circumvent their sentences, crime is certain to envelop society.”

Further, in the case of Hussain v. Union of India^[5] the Supreme Court brought absconding of one or the other accused in the trial to limelight as the pivotal reason for delay in the criminal justice administration. Another case of pertinence is Bachche Lal Yadav v. Akhand Pratap Singh^[6] which revolves around absenteeism in criminal trials wherein the accused followed the tactic of absconding from the trial to delay the trial proceedings. At this juncture, ad rem is 177th^[7] and 239th^[8]Law Commission Report wherein absconding by the accused was considered to be the biggest impediment in the speedy administration of the criminal justice system.

Therefore, it is magnificently patent that with the passage of time the fleeing away or absconding or absence of the accused in the criminal trial has become a major hurdle in the expeditious disposal of the criminal proceedings. But pertinent at this point is to peep into what the Code of Criminal Procedure, 1973 had for dealing with absenteeism in criminal proceedings. Under the regime of Code of Criminal Procedure, 1973 the provisions dealing with such a situation of absence of one party during the criminal proceedings was first the recording of evidence and second to conduct inquiry or trial in absence of accused that too only in certain exceptional situations and not always.

For a better comprehensive understanding of that provisions let's peep into Section 299 of CrPC which stipulated that when either an accused person absconded or there was no immediate prospect of arresting him then the competent court could in such a case in his absence examine the witnesses if any produced on behalf of the prosecution and record their depositions. However, a further limitation existed that is a deposition could be given in evidence against him on the inquiry into or trial for the offence with which he was charged only if the department was dead or he was incapable of giving evidence or could not be found or his presence could be procured without an amount of delay or expense or inconvenience which could be unreasonable.

Further Section 299 (2) of the Code of Criminal Procedure, 1973 empowered the High Court or a Court of Session to direct any magistrate of the first class to hold an inquiry and examine any witness and use such a deposition given in evidence against any person if the deponent was dead or incapable of giving evidence or was beyond the limits of India. In addition to this, Section 317 of the Code of Criminal Procedure, 1973 provided for certain cases wherein inquiry or trial could have been conducted in the absence of the accused and his attendance could have been dispensed with but that too only in certain cases which were that first the personal attendance of the accused before the court was not necessary in the interest of justice or second that the accused persistently disturbed the proceedings in the court and if the accused was represented by a pleader.

But even after these provisions it is interesting to note that the respectable Courts of our country time and again have directed our respectable governments to undertake necessary amendments in the criminal laws for dealing with such absenteeism in the criminal proceedings. In order to testify the same a deep glance into the following cases is essential;

The first being the case of Hussain v. Union of India^[9] wherein the Supreme Court took the inspiration from the Bangladesh Criminal Law to direct the Indian government to undertake measures to prevent delays in criminal trials because of the absence of accused persons. The Court categorically observed that:

“23. Another suggestion which cropped up during the hearing of the present case relates to remedying the situation of delay in trials on account of absconding of one or the other accused during the trial. In this regard our attention has been drawn to an amendment in the Code of Criminal Procedure, 1898 of Bangladesh by way of adding Section 339-B to the following effect: “339-B. Trial in absentia.– (1) Where after the compliance with the requirements of Section 87 and Section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order published in at least two national daily Bengali newspapers having wide circulation, direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence. (2) Where in a case after the production or appearance of an accused before the Court or his release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub-section (1) shall not apply and the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.”

Secondly in the case of Hari Singh v. State of Jharkhand^[10] Court took note of the fact that co accused Dasrath Singh was absconding for 15 years and directed the Home Secretary, Government of Jharkhand to place before the government the problems associated with the absence of accused in the criminal proceedings so that the State government could at the state level make amendments in Section 299 of Code of Criminal Procedure, 1973. The Court further also directed the Director General of Police to apprise the Court regarding the status of the absconders register by filling Form 16 of the Police Manual of the entire State of Jharkhand. The Court in Kader Khan v. State of West Bengal^[11] interestingly after recalling the observations of the Supreme Court in Hussain v. Union of India^[12] observed that “no amendment has been made to Section 299 (1) CrPC to provide for the trial in absentia of the absconder which may avoid unfortunate laws of valuable evidence due to death of a witness as happened in the present case.” The court while dealing with the case observed that;

“…this unfortunate loss of valuable evidence of a rape victim arises due to the prevalence of an archaic law relating to the trial of absconders which does not recognise the evolution of law relating to waiver of a fair trial rights of an absconder justifying trial in absentia and emergence of rights of victims, particularly victims of sexual abuse against secondary victimisation by giving repeated depositions in the court.”

Therefore, after taking note of the pernicious impact of abscondence on speedy justice and rights of victims, directed Registrar General to send the copy of the Judgment to the Principal Secretaries to the Ministry of Home Affairs and Ministry of Law and Justice, Union of India for considering the proposal to amend the Code of Criminal Procedure and incorporate the provisions of trial in absentia of an absconding accused.

At this point it is vividly clear that absence of any apt provision for dealing with the situation of absence of an accused in the criminal trial proceedings is coming in the way of achieving the ultimate goal of justice. In fact by laying down those procedural requirements of conducting the trial, pronouncing the judgment and executing the sentence only in the presence of the accused irrespective of the long delay caused by the accused by following the tactic of absconding or absenting himself we are going against the age-old principle given by Justice Krishna Iyer in the case of Sushil Kumar Sen v. State of Bihar^[13] that “Procedure is the handmaid of Justice and not its jealous mistress.” Procedural requirements exist only as a path to achieve justice. Further, it is germane to note that such absence also leads to delays in criminal trials which again is in violation to a cardinal principle of law that is Justice delayed is Justice denied.

Hence, in the light of all these considerations, the Government of India has incorporated to a great extent trial in absentia in criminal proceedings via certain provisions of Bharatiya Nagarik Suraksha Sanhita, 2023. By virtue of Section 356 of Bharatiya Nagarik Suraksha Sanhita, 2023^[14] the provision of Inquiry, Trial or Judgment in absentia of proclaimed offender has been incorporated. It provides for presuming when a person is declared as a proclaimed offender, whether or not charged jointly and has absconded to evade the trial, and there is no immediate prospect of arresting him to operate as a waiver of his right to be present and tried in person.^[15] The provision has removed the requirement of presence of the accused person at the time of the trial and at the time of pronouncement of the judgement.^[16] But a limitation has been imposed that the court shall not commence the trial unless a period of 90 days has lapsed from the date when the charges were framed.15 Furthermore, in order to balance the rights of the accused on one hand and the society on the other more procedural requirements have to be complied before trial in absentia can begin. And these inter alia include issuance of execution of two consecutive warrants of arrest within the interval of 30 days,^[17] at least publishing in a national or a local newspaper,^[18] informing his relative or friend about the commencement of the trial^[19] and fixing the information about the commencement of the trial on some conspicuous part of the house in which such a person ordinarily resides and display it in the police station of the district of his last known address of residence.^[20] Such a balancing is more clearly visible by virtue of the fact that if the proclaimed offender appears before the court during such trial, then in the interest of justice, the court has been empowered to allow him to examine any evidence which may have been taken in his absence.^[21]

More importantly, it stipulates that in prosecution for offences under this Sanhita, voluntary absence of the accused after the trial has commenced, shall not prevent continuing the trial, including the pronouncement of the judgement, even if he is arrested and produced or appears at the conclusion of the trial.^[22] In addition to this, with an inclination towards the interests and rights of the victims in such cases of absence of the accused it has been enshrined that no appeal will lie against a judgement passed under this section after the expiry of three years from the date of the judgement and before that only when the proclaimed offender presents himself before the court of appeal.^[23]Hence, it can be inferred very patently that what was not there in the criminal justice administration has been introduced to a great extent via the introduction of trial in absentia in the case of proclaimed offenders. This reflects firstly, the cognizance of the several recommendations of the Supreme Court, High Court and Law Commission of India and secondly the victim-oriented approach , balancing the interest and the rights of both the parties to the criminal trial prosecution on one hand and accused on the other.

Author is an advocate and Views Are Personal. 

2. Colozza v. Italy (1985) 516 ECHR. ↑

3. Fawzia Cassim, “The Accused's Right to be Present: A Key to Meaningful Participation in the Criminal Process” 38 The Comparative and International Law Journal of Southern Africa 285-303 (2005). ↑

4. (2014) 14 SCC 222. ↑

5. (2017) 5 SCC 702. ↑

6. (2016) SCC OnLine SC 1889. ↑

7. Law Commission of India, “177th Report on Law relating to Arrest” (December, 2001). ↑

8. Law Commission of India, “239th Report on Expeditious Investigation and Trial of Criminal Cases against Influential Personalities” (March, 2012). ↑

9. Supra note 6. ↑

10. (2018) SCC OnLine Jhar 2534. ↑

11. (2022) SCC OnLine Cal 1038. ↑

12. Supra note 6. ↑

13. AIR 1975 SC 1185. ↑

14. Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023), s. 356 (1). ↑

15. Ibid. ↑

16. Ibid. ↑

17. Supra note 14, s. 356 (2) (i). ↑

18. Supra note 14, s. 356 (2) (ii). ↑

19. Supra note 14, s. 356 (2) (iii). ↑

20. Supra note 14, s. 356 (2) (iv). ↑

21. Supra note 14, s. 356 (4). ↑

22. Supra note 14, s. 356 (6). ↑

23. Supra note 14, s. 356 (7). ↑