New Delhi: The new Bharatiya Nagarik Suraksha Sanhita 2023 law allows for the trial of an accused in his or her absence. With this, India joins countries like China, Bangladesh and the US, which allow trial in absentia.
Absentia is a Latin word, meaning “in (the) absence (of)”. The phrase trial in absentia refers to a trial conducted in the absence of the accused, in case the alleged offender has absconded to evade trial.
President Droupadi Murmu on 25 December gave her assent to three criminal code bills to replace the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), and the Evidence Act, turning them into laws. The three bills had been passed in Parliament earlier in the month.
The government had first introduced the three bills — The Bharatiya Nyaya Sanhita 2023, The Bharatiya Nagarik Suraksha Sanhita 2023 and The Bharatiya Sakshhya Bill 2023, in Parliament in August. They were then referred to the parliamentary standing committee on Home Affairs, which recommended more than 50 changes in the bills.
As a result, the government withdrew the three bills and reintroduced revised drafts in the winter session of Parliament as the Bharatiya Nyaya Sanhita (BNS-II to replace the IPC), the Bharatiya Nagarik Suraksha Sanhita (BNSS-II to replace the CrPC), and the Bharatiya Sakshya Bill (BSB-II to replace the Indian Evidence Act), which were then passed.
Clause 356 of the Bharatiya Nagarik Suraksha Sanhita (II) 2023 law states, “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 judgement”.
Meanwhile, under the Bharatiya Nyaya Sanhita (II) 2023, any damage or destruction to property intended for the defense of India or any other governmental purposes, even if done in a foreign country, will be classified as an “act of terror”.
Talking about the new criminal justice laws (then bills) in Parliament, Union Home Minister Amit Shah had said the new laws were in consonance with the “spirit of the Constitution and have been brought keeping in mind the well-being of the people of the country”.
Talking about the provision for trial in absentia in particular, Shah had said, those who have fled the country after committing crimes, killing hundreds of people in bomb blasts, or those who are hiding in Pakistan or other places, after carrying out terror attacks will not be spared. Shah said that convicting these fugitives will make India’s case for their extradition stronger.
“Whether you come or not, the trial will be continued, there will be punishment and their property will also be confiscated,” he said. “Once they are convicted, we can press for their extradition and it increases the chance of them returning.”
The US, China, Bangladesh, Canada, France, Italy, Spain, Saudi Arabia, UAE and Ukraine are some countries, among others, which allow for trial in absentia.
The provision allows court procedures to begin after a specified period of time has lapsed after framing of charges, in cases where the accused are missing or evading trial. Some states also provide an advocate for the accused tried in absentia.
Some examples of individuals tried in absentia include Mengistu Haile Mariam, former communist dictator of Ethiopia who was sentenced to death in 2008 for genocide, Martin Bormann, Nazi official and Hitler’s private secretary, who was convicted of war crimes and sentenced to death by hanging at the Nuremberg war crimes trials in 1945-46.
ThePrint looks at the trial in absentia procedure in a few other countries and how it compares with the new provision in India.
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How trial in absentia provision in India compares to that of other countries
China’s 2018 amendment to the PRC Criminal Procedural Law (CPL) introduced the trial in absentia procedure in the country under Article 291.
Beijing explicitly mentions specific crimes where trial in absentia is applicable, which include embezzlement or bribery, a crime of seriously compromising national security or terrorist activities for fugitives who have fled China.
Trials in absentia under Article 291 may be conducted only by intermediate people’s courts or the courts of the first instance at the level of municipalities. Trial in absentia is not applicable for crimes such as homicide, kidnapping and other such crimes.
However, the new provision in India allows for trial in absentia to any absconder declared a “proclaimed offender”.
Both India and China are similar in that they make a provision for a state-appointed lawyer to represent the absentee accused, in case no counsel is appointed.
While both the Chinese amendment and the Indian proposed bill also mandate a period of 90 days from the date of framing of the charge before the commencement of trial-in-absentia, Bangladesh’s Code of Criminal Procedure, 1898 does not mention any such time period and leaves it to the court to specify this time period.
In case an accused person has absconded or is evading arrest, Section 339B of the Bangladesh law states “the Court taking cognizance of the offence complained of shall, by order…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.”
Canada also allows for trial in absentia. Section 475(1) of the Criminal Code of Canada allows for trial to continue, proceed to a judgement as well as impose a sentence, in case the accused absconds during the trial.
According to the law, in such a situation “(a)he [the accused] shall be deemed to have waived his right to be present at his trial, and (b)the court may (i) continue the trial and proceed to a judgement or verdict and, if it finds the accused guilty, impose a sentence on him in his absence”.
Section 803(2) of the law adds that the court “may, if it thinks fit, issue a warrant in Form 7 for the arrest of that defendant and adjourn the trial to await their appearance under the warrant”.
The US is another country which allows for trial in absentia.
In the US, a defendant does not need to be present during trial — if the accused is an organisation, if the proceeding involves correction or reducing a sentence.
If the offence is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant’s written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant’s absence.
Moreover, in the United States, if the defendant waives the right to be present, the trial can proceed, including the verdict’s return and sentencing, during the defendant’s absence.
In the US, a defendant may waive the right to be present during trial either with the consent of the court — that is by a explicit waiver in open court or written waiver executed by the defendant and their attorney — or by voluntarily being absent from court, in which case it is considered a knowing waiver of the right to be present.
Meanwhile, Pakistan does not allow for trial in absentia, but section 512 of the Code of Criminal Procedure there allows for recording of evidence in absence of the defendant, in case they are proved to have absconded without any immediate prospect of arrest.
In the absence of the accused, the Sessions court or High Court there can examine the witnesses (if any) produced on behalf of the prosecution and record their depositions.
(Edited by Poulomi Banerjee)
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