Introduction
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a radical restructuring of India’s criminal procedural framework by replacing the Code of Criminal Procedure, 1973. Among its most debated introductions is Section 356[1], which expressly authorises courts to conduct trials in absentia against individuals declared as proclaimed offenders. The provision aims to respond to an endemic problem crippling the Indian criminal justice system – the deliberate evasion of trial by accused persons to frustrate investigations, paralyse proceedings, and delay justice.
However, the concept of convicting an accused without their physical presence raises profound concerns regarding the constitutional guarantee of a fair trial under Article 21[2], adherence to the principles of natural justice, and the maxim audi alteram partem. The accused’s right to confrontation, defence participation, and personal hearing represent essential components of procedural due process. Trial in absentia, therefore, sits uncomfortably at the intersection of two competing constitutional imperatives: the State’s obligation to ensure speedy justice and the individual’s right to participatory criminal adjudication.
This article analyses whether Section 356 of the BNSS strikes a constitutionally sustainable balance between these competing interests or whether it risks undermining the very foundations of criminal due process.
Legislative Background and Rationale
Under the repealed Criminal Procedure Code, criminal trials were almost universally contingent upon the presence of the accused. Although Sections 299 CrPC and Section 317 CrPC permitted limited evidentiary recording or dispensation of appearance in exceptional circumstances, the final adjudication of guilt could generally not proceed in absentia. This ensured strong adherence to participatory justice but produced damaging procedural paralysis where defendants absconded to indefinitely stall trials.
The Supreme Court has repeatedly recognised that excessive delays violate the right to speedy trial, forming part of the broader right to life and personal liberty guaranteed by Article 21. In Hussain v Union of India[3]The Court described delay as a “systemic deficiency” eroding public faith in justice delivery and directed legislative and administrative reforms to remedy stagnating prosecutions. Similarly, in Vakil Prasad Singh v State of Bihar[4]The Court acknowledged that justice cannot be sacrificed solely in the name of procedural rigidity when accused persons themselves obstruct proceedings.
Against this backdrop, Section 356 emerges as an attempt to overcome strategic abscondence by allowing courts to conclusively determine criminal liability even in the absence of the accused, thereby restoring procedural finality and victim closure.
Statutory Framework of Section 356
Section 356 applies only to cases involving serious offences punishable with ten years or more of imprisonment, life imprisonment, or death. Before trial may proceed in absentia, strict procedural safeguards must be complied with:
- The accused must be declared a Proclaimed Offender after repeated failure to respond to summons and warrants.
- Proclamation must be made publicly, including digital dissemination.
- A mandatory waiting period of 90 days must lapse after declaration.
- The court must record satisfaction that the absence is intentional and deliberate.
Only after compliance with these conditions may evidence be recorded, arguments heard, and judgment delivered without the physical participation of the accused.
These thresholds demonstrate legislative awareness of constitutional risks, ensuring trial in absentia is not triggered casually but only after demonstrable evasion of due process.
Deemed Waiver versus Forfeiture of Rights
Indian constitutional jurisprudence firmly rejects the notion of waiver of fundamental rights. In Basheshar Nath v CIT[5]The Supreme Court held that fundamental rights cannot be surrendered even voluntarily.³ This position was reaffirmed in Olga Tellis v Bombay Municipal Corporation[6], which emphasised that constitutional guarantees exist beyond individual consent.
Section 356 arguably introduces a form of “deemed waiver”, whereby evasion of trial is statutorily equated with abandonment of participatory rights. Such reasoning risks doctrinal conflict since waiver under Indian law must be voluntary, informed, and explicit.
However, a constitutionally safer interpretation is to view Section 356 not as a waiver but as a forfeiture by misconduct. Forfeiture arises not from consent but as a legal consequence of abuse of process. International legal systems recognise forfeiture where litigants deliberately obstruct adjudication. In that sense, abscondence becomes a form of procedural default, triggering consequences that limit later claims of deprivation.
By framing trial in absentia as a penal response to deliberate obstruction — rather than voluntary waiver — Indian courts may reconcile Section 356 with established constitutional doctrine.
Compatibility with Article 21 and Fair Trial Jurisprudence
The right to fair trial under Article 21 encompasses:
- Right to be present during trial
- Right to effective legal representation
- Right to cross-examination and confrontation
- Right to present a defence
Trial in absentia directly restricts at least the first three elements. Although counsel may represent the accused, absence diminishes the effectiveness of the defence strategy and witness confrontation.
Nevertheless, rights under Article 21 are not absolute. They are subject to reasonable restriction where such limitation satisfies the test of proportionality, as affirmed in the Justice K.S. Puttaswamy (Retd.) v. Union of India & Ors. (2017)[7] and refined in subsequent cases like Anuradha Bhasin v. Union of India (2020)[8], and requires that any state interference with fundamental rights must satisfy the following criteria
- Legitimate aim – preventing obstruction of justice and terminating indefinite delays.
- Rational nexus – trials remove case stagnation directly linked to abscondence.
- Necessity – no less restrictive mechanism exists to address chronic evasion.
- Balancing – procedural safeguards attempt to minimise rights infringement.
Given Section 356’s limited application to grave offences and its extensive safeguards, the proportionality standard arguably stands satisfied, placing the provision within constitutionally tolerable bounds.
Appellate Rights and Surrender Requirement
The most contentious feature of Section 356 lies in sub-section (7),[9] Under what conditions is the filing of an appeal upon the accused’s surrender before the appellate court? While Indian courts commonly require surrender before hearing appeals against conviction, imposing surrender as a mandatory precondition risks effectively denying appellate remedy, especially where the conviction itself is disputed.
Unlike European jurisdictions that permit unconditional retrial upon subsequent appearance of convicted absconders, Indian law offers only a conditional appeal. This raises questions concerning the adequacy of post-trial safeguards, particularly in cases where evidence or identification might later be contested.
Judicial interpretation may thus prove decisive. Courts may relax surrender requirements or recognise constitutional remedies under writ jurisdiction to prevent irreversible miscarriages of justice.
International Standards
International criminal law discourages trials in absentia. Article 63 of the Rome Statute of the International Criminal Court [10] Requires the physical presence of the accused.⁵ Similarly, Article 14 of the ICCPR [11] Emphasises confrontation rights as integral to fair trial standards.
However, many European civil law systems permit trials in absentia, provided:
- Actual notice of proceedings existed;
- Absence was deliberate, and
- Guaranteed unconditional retrial is available upon subsequent appearance.
While India largely meets the first two criteria, it lacks explicit retrial safeguards, placing its model closer to a conditional justice paradigm rather than restorative fairness structures seen internationally.
Potential for Misuse
Civil liberties organisations caution against potential abuse of proclamation mechanisms in politically sensitive cases, where deliberate evasion may be incorrectly inferred without a genuine undertaking of service or warrant execution. Weaknesses in enforcement practices — absent transparent service verification — intensify this concern.
Judicial reinforcement of safeguards is therefore essential:
- Detailed reasoned proclamation orders
- Mandatory appointment of defence counsel before recording evidence
- Video documentation of service compliance
- Consideration of retrials upon later appearance
Without such judicial vigilance, the provision risks transforming from a procedural necessity into an expedient prosecutorial weapon.
Conclusion
Trial in absentia under Section 356 BNSS represents a bold procedural departure driven by necessity rather than ideological experimentation. The paralysis caused by decades of abscondence-based delay demanded reform to protect victims, witnesses, and public faith in justice.
Although the provision compresses conventional notions of participatory adjudication, it finds constitutional support through doctrines of proportionality, forfeiture by misconduct, and procedural necessity. Its survival, however, depends upon stringent judicial oversight. Courts must construe Section 356 narrowly, enhance post-conviction safeguards, and relax rigid appellate surrender conditions when fairness so demands.
Ultimately, the legitimacy of trial in absentia will rest not on legislative text alone but on judicial stewardship ensuring that the pursuit of speedy justice does not eclipse the constitutional promise of fair trial rights.
Author(s) Name: Pushkar Santosh Bapatla (Gujarat National Law University)
References:
[1] Bharatiya Nagarik Suraksha Sanhita 2023, s 356
[2] Constitution of India 1950 art 21.
[3] Hussain v Union of India (2017) 5 SCC 702.
[4] Vakil Prasad Singh v State of Bihar (2009) 3 SCC 355.
[5] Basheshar Nath v Commissioner of Income Tax (1959) SCR 528.
[6] Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545.
[7] Justice K S Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[8] Anuradha Bhasin v Union of India (2020) 3 SCC 637.
[9] The Bharatiya Nagarik Suraksha Sanhita 2023, s 356(7).
[10] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 art 63.
[11] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 14.
