3 min readNew DelhiAug 13, 2023 12:26 PM IST
First published on: Aug 12, 2023 at 07:07 AM IST
A person accused of crime can be tried and convicted in his absence, as if he was present in court and has waived his right to a fair trial for all offences under the proposed Bharatiya Nagarik Suraksha Sanhita, 2023, the Bill that seeks to replace the Code of Criminal Procedure, 1973.
The right of an accused to fully participate in the trial and offer a defence is part of the due process. While the Code of Criminal Procedure currently provides for recording evidence in the absence of the accused, a trial in absentia is not permitted. If an accused is absconding, it is the duty of the state to locate him before the trial begins.
The Bill provides that if the accused is not present, the court can proceed to try him 90 days after the date on which charges are framed.
“Convicting an accused in absentia is fine if the objective is to provide closure to the victim, but it does not provide a fair opportunity for the accused,” Prof Kumar Askand Pandey, a criminal law expert at the National Law University, Lucknow said.
“Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment: Provided that the Court shall not commence the trial unless a period of ninety days has lapsed from the date of framing of the charge,” Section 356 of the Bharatiya Nagarik Suraksha Sanhita states.
A trial in absentia is prescribed in stringent anti-terror legislation such as The Unlawful Activities (Prevention) Act (UAPA) where an alternative criminal law framework applies. In such laws, the burden of proof is reversed — with the onus on the accused to prove himself not guilty rather than the state carrying the duty to prove guilt against the accused.
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A trial in absentia is prescribed in stringent anti-terror legislation such as The Unlawful Activities (Prevention) Act (UAPA) where an alternative criminal law framework applies. In such laws, the burden of proof is reversed — with the onus on the accused to prove himself not guilty rather than the state carrying the duty to prove guilt against the accused. 
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