Allahabad High Court Lays Down Detailed Guidelines for ‘Trial in Absentia’ Under BNSS in Landmark Judgment

By Rajesh Pandey

In a significant ruling that could have far-reaching implications for India’s criminal justice system, the Allahabad High Court has laid down a detailed procedure for conducting criminal trials in the absence of accused persons who deliberately evade arrest and court proceedings.

Describing Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 as a landmark provision, the High Court observed that it formally introduces the concept of “trial in absentia” into Indian criminal law.

Justice Praveen Kumar Giri, while delivering the judgment, explained that the provision allows courts to continue criminal proceedings against a proclaimed offender who intentionally absconds to avoid trial and whose arrest appears unlikely in the near future.

The Court observed that when an accused person deliberately evades the judicial process after being declared a proclaimed offender, such conduct can legally be treated as a waiver of the right to remain personally present during the trial.

In order to ensure speedy justice and prevent prolonged delays caused by absconding accused persons, the High Court laid down a comprehensive step-by-step framework for lower courts to follow while invoking Section 356 BNSS.

The Court clarified that under the provision, a criminal court is empowered to record evidence, examine witnesses, and even pronounce judgment despite the physical absence of the accused.

To maintain fairness and transparency during such proceedings, the Court directed that witness statements and depositions should, as far as possible, be recorded through audio-video electronic means, including the use of mobile phones and other digital devices.

The judgment also stressed that the legal rights of the absconding accused must still be protected.

If the accused does not appoint a lawyer, the court is duty-bound to provide legal representation at the expense of the State.

The High Court further clarified that a trial in absentia cannot begin immediately after an accused goes missing. Certain mandatory safeguards and coercive measures must first be exhausted.

According to the guidelines issued by the Court, at least two consecutive non-bailable warrants must be issued against the accused, with a minimum interval of 30 days between them.

The Court also directed that public notices regarding the proceedings must be published in widely circulated national or local newspapers in the area where the accused last resided.

In addition, information regarding the commencement of the trial must be communicated to the accused person’s relatives or friends.

Notices must also be displayed prominently at the accused’s residence as well as at the concerned local police station.

Another important clarification made by the Court relates to appeals against convictions delivered in such trials.

The bench observed that under Section 356(7) of the BNSS, an appellate court can entertain an appeal against conviction only if the proclaimed offender personally appears before the court.

The Court also noted that such appeals must be filed within a strict limitation period of three years from the date of judgment.

The ruling came while hearing an application filed under Section 528 BNSS by Ravi alias Ravindra Singh, who had challenged a non-bailable warrant issued against him by a court in Agra.

Court records showed that the accused had earlier been granted bail by the High Court in 2021 and was present when charges were framed against him in February 2024. However, he allegedly stopped appearing before the trial court after October 2024.

Following his repeated absence, the trial court issued non-bailable warrants against him. Subsequently, proclamation proceedings under Section 82 CrPC and attachment orders under Section 83 CrPC were also initiated.

While hearing the matter, the High Court decided to keep the operation of the non-bailable warrant in abeyance for two months.

At the same time, it granted liberty to the trial court to take appropriate action if the accused failed to cooperate in the proceedings.

Taking a broader view of the issue, Justice Giri highlighted the growing challenge posed by absconding accused persons and the delays they cause in criminal trials across the country.

The Court made it clear that before initiating a trial in absentia, courts must ensure that every standard legal and coercive measure has already been exhausted.

These measures include issuance of non-bailable warrants, publication of proclamations, attachment of the absconder’s property under Section 85 BNSS, and prosecution under Section 209 of the Bharatiya Nyaya Sanhita (BNS) for evading court orders.

Only after these legal steps are completed, and after appointing an amicus curiae or legal aid counsel to represent the absent accused, can a court proceed with framing charges and concluding the trial under Section 356 BNSS, the High Court clarified in its May 5 judgment.