Section 356 of BNSS, 2023 — Inquiry, Trial or Judgment in Absentia of Proclaimed Offender

Introduction

Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the inquiry, trial or judgment in absentia of a proclaimed offender.

The provision allows a Court, subject to prescribed conditions and safeguards, to conduct criminal proceedings against a proclaimed offender even when the person is not physically present before the Court.

The purpose of the provision is to prevent an accused from deliberately absconding and thereby indefinitely delaying the criminal proceedings.

Section 356 is an important procedural development under the BNSS because it expressly provides a framework for trial and judgment in the absence of a proclaimed offender.

Meaning of Section 356

“Trial in absentia” means conducting a criminal trial against an accused person even though the accused is not physically present before the Court.

Section 356 specifically applies to a person who:

• has been declared a proclaimed offender;
• has absconded to evade trial; and
• there is no immediate prospect of arresting that person.

When these conditions are satisfied and the procedure prescribed by Section 356 is followed, the Court may conduct the trial in the absence of the proclaimed offender and pronounce judgment.

Statutory Basis

Section 356 contains several provisions dealing with:

• commencement of trial in absentia;
• safeguards before the trial begins;
• appointment of an advocate at State expense;
• use of previously recorded evidence;
• audio-video recording of evidence;
• continuation of proceedings;
• appeal against a judgment passed in absentia; and
• extension of the provision to certain other absconders.

Section 356(1): When Can Trial in Absentia Take Place?

Section 356(1) applies when the following conditions are satisfied.

1. The Person Must Be a Proclaimed Offender

The person must have been declared a proclaimed offender in accordance with law.

2. The Person Must Have Absconded to Evade Trial

The person must have absconded with the purpose of avoiding the criminal trial.

Mere absence from Court is not sufficient to invoke Section 356.

3. No Immediate Prospect of Arrest

The Court must be satisfied that there is no immediate prospect of arresting the proclaimed offender.

Only after these conditions are satisfied can the Court proceed with the statutory mechanism for trial in absentia.

Waiver of the Right to Be Present

Section 356 provides that the absconding of the proclaimed offender to evade trial shall be deemed to operate as a waiver of the right to be present and tried in person.

The provision therefore prevents a proclaimed offender from deliberately remaining outside the reach of the Court and using their absence to indefinitely prevent the criminal case from proceeding.

However, this waiver operates only within the statutory framework of Section 356 and after the prescribed safeguards have been followed.

Reasons Must Be Recorded in Writing

The Court cannot begin a trial in absentia automatically.

The Court must consider the circumstances and record reasons in writing before proceeding under Section 356.

This requirement ensures that the power is exercised judicially and that the decision to conduct the trial without the accused is properly justified.

Ninety-Day Requirement

One of the most important safeguards under Section 356 is the 90-day waiting period.

The Court cannot commence the trial until 90 days have elapsed from the date of framing of the charge.

Therefore, the basic sequence is:

Framing of charge → 90 days → satisfaction of statutory conditions → trial in absentia

This gives the proclaimed offender additional time to appear before the Court before the trial begins in their absence.

Section 356(2): Procedure Before Trial in Absentia

Before commencing the trial in absentia, the Court must comply with several procedural safeguards.

Two Consecutive Warrants

The Court must issue two consecutive warrants of arrest.

There must be an interval of at least 30 days between the two warrants.

This ensures that efforts are made on more than one occasion to secure the presence of the proclaimed offender.

Newspaper Publication

The Court must publish a notice in a national or local daily newspaper circulating in the place of the proclaimed offender’s last known residential address.

The notice must:

• require the proclaimed offender to appear before the Court; and
• inform the person that failure to appear within 30 days from the date of publication may result in the commencement of the trial in their absence.

Information to Relative or Friend

The Court must inform the proclaimed offender’s relative or friend, if any, about the commencement of the trial.

This provides another method of bringing the proceedings to the knowledge of the absent accused.

Notice at Residence

Information about the commencement of the trial must be affixed to a conspicuous part of the house or homestead where the proclaimed offender ordinarily resides.

Notice at Police Station

The information must also be displayed at the police station of the district of the person’s last known residential address.

These requirements collectively seek to ensure that reasonable efforts are made to inform the proclaimed offender before the trial proceeds.

Section 356(3): Legal Representation

If the proclaimed offender does not have an advocate, the Court must provide an advocate for the person’s defence.

The advocate is provided at the expense of the State.

This is an important safeguard because the accused is absent and therefore cannot personally conduct the defence.

Trial in absentia does not mean that the Court can simply proceed without any defence being presented on behalf of the accused.

Section 356(4): Evidence Recorded in the Absence of the Accused

Section 356 also deals with prosecution evidence that has already been recorded.

Where the competent Court has examined prosecution witnesses and recorded their depositions, those depositions may be used as evidence against the proclaimed offender during the inquiry or trial.

This prevents the criminal proceeding from becoming unnecessarily repetitive merely because the accused has absconded.

If the Accused Later Appears

If the proclaimed offender is later:

• arrested and produced before the Court; or
• appears before the Court during the trial,

the Court may, in the interests of justice, allow the accused to examine the evidence that was recorded in their absence.

This provides a safeguard against unfairness resulting from the accused’s earlier absence.

Section 356(5): Audio-Video Recording

Section 356 recognises the use of audio-video electronic means in proceedings conducted under the provision.

The deposition and examination of witnesses may, as far as practicable, be recorded through audio-video electronic means.

This is consistent with the wider recognition of electronic methods under the BNSS.

Section 356(6): Continuation of Proceedings

Section 356 also addresses a situation where an accused voluntarily remains absent after the trial has already commenced.

The Court may continue the proceedings despite such absence.

The proceedings may continue up to the stage of pronouncement of judgment.

This prevents an accused from deliberately interrupting the proceedings by appearing and disappearing at different stages of the trial.

Section 356(7): Appeal Against Judgment

Section 356 contains a specific requirement concerning an appeal against a judgment passed in absentia.

A proclaimed offender cannot file an appeal against the judgment unless the person presents themselves before the appellate Court.

Therefore, an accused who has been convicted in absentia cannot remain absconding and simultaneously pursue an appeal without appearing before the appellate Court.

Three-Year Limitation

Section 356 also provides that no appeal against conviction shall lie after the expiry of three years from the date of the judgment.

Therefore, two important requirements apply:

• the proclaimed offender must present themselves before the appellate Court; and
• the appeal against conviction must be brought within the prescribed three-year period.

Section 356(8): Extension to Other Absconders

Section 356(8) gives the State Government power, by notification, to extend the provisions of Section 356 to certain other absconders referred to in Section 84(1).

This means that the operation of the trial-in-absentia framework is not necessarily limited only to the persons directly covered under Section 356(1), subject to the statutory conditions.

Purpose of Section 356

The main objectives of Section 356 are:

• preventing deliberate evasion of criminal trials;
• avoiding indefinite delay in criminal proceedings;
• ensuring that proclaimed offenders cannot frustrate justice simply by remaining absconding;
• protecting the interests of victims and the administration of justice; and
• allowing courts to complete proceedings after following prescribed safeguards.

The provision therefore attempts to balance the accused’s right to participate in a criminal trial with the need to prevent deliberate obstruction of criminal proceedings.

Section 356 and Fair Trial

Trial in absentia raises an important question concerning the accused’s right to a fair trial.

Section 356 therefore contains several safeguards before the Court can proceed without the accused, including:

• two consecutive arrest warrants;
• a 30-day interval between the warrants;
• publication of a newspaper notice;
• information to a relative or friend;
• notice at the accused’s residence;
• notice at the concerned police station;
• a 90-day period after framing of charge;
• State-funded legal representation; and
• the possibility of allowing the accused to examine evidence later if they appear during the trial.

These safeguards are intended to ensure that trial in absentia is not used casually or mechanically.

Section 356 and Article 21

Article 21 of the Constitution protects life and personal liberty and includes the requirement of a fair criminal procedure.

Section 356 must therefore be applied consistently with the principles of a fair trial.

The provision does not permit the Court to simply proceed against every absent accused. It creates a specific procedure that must be followed before a proclaimed offender can be tried in absentia.

Section 356 and Section 355

These provisions are related but different.

Section 355

Section 355 allows the Court to dispense with the personal attendance of an accused in certain circumstances.

For example, personal attendance may be unnecessary in the interests of justice or the accused may be persistently disturbing the proceedings.

The accused continues to be represented by an advocate.

Section 356

Section 356 specifically deals with a proclaimed offender who has absconded to evade trial.

It goes further by permitting the Court to conduct the trial and pronounce judgment in the accused’s absence after complying with the statutory safeguards.

Therefore:

Section 355 = Dispensing with personal attendance

Section 356 = Trial and judgment in absentia of proclaimed offender

Section 356 and Section 84

Section 84 BNSS deals with the proclamation for a person absconding.

Section 356 operates in connection with the status of a proclaimed offender and provides the mechanism for proceeding against such a person in their absence.

The basic sequence can therefore be understood as:

Absconding → Proclamation → Proclaimed offender → Conditions under Section 356 → Trial in absentia

Section 356 and Section 357

Section 357 deals with inquiry, trial or judgment when the accused does not understand the proceedings.

Section 356, on the other hand, concerns the deliberate absence of a proclaimed offender who has absconded to evade trial.

These are two different situations and should not be confused.

BNSS and CrPC

Section 356 is a new provision under the BNSS.

There was no direct equivalent under the Code of Criminal Procedure, 1973 that provided the same comprehensive mechanism for conducting the entire trial and pronouncing judgment in the absence of a proclaimed offender.

The old CrPC contained Section 299, which permitted evidence to be recorded in the absence of an accused who had absconded, subject to specified conditions.

However, Section 299 CrPC did not create the same comprehensive trial-in-absentia mechanism now provided under Section 356 BNSS.

Therefore, Section 356 represents a significant procedural development under the BNSS.

Important Case Law

Ravi Alias Ravindra Singh v. State of U.P. and Another

The Supreme Court considered Section 356 BNSS in the context of an accused who had absconded and had been declared a proclaimed offender.

The Court discussed the statutory safeguards surrounding trial in absentia, including the requirement that the Court wait 90 days from the framing of charges before commencing the trial.

The decision also considered the requirement of legal representation and the statutory restrictions concerning an appeal against a judgment passed in absentia.

The case is particularly relevant because it concerns the operation of Section 356 BNSS itself rather than merely an earlier CrPC provision.

Example

Suppose A is accused of committing a serious offence.

After the criminal proceedings begin, A deliberately absconds to avoid the trial. The Court declares A a proclaimed offender, but there is no immediate prospect of arresting A.

The Court must first comply with the requirements of Section 356.

It must issue the required warrants, publish the necessary notice, inform the relevant persons, display the required notices and wait for the prescribed period after framing of charge.

If the statutory requirements are fulfilled, the Court may commence the trial in A’s absence.

If A has no advocate, the Court must provide an advocate at the expense of the State.

The Court may then conduct the trial and ultimately pronounce judgment even though A remains absent.

Exceptions and Limitations

Mere Absence is Not Enough

An accused being absent from Court does not automatically permit a trial in absentia.

The specific requirements of Section 356 must be fulfilled.

Proclaimed Offender Requirement

The provision primarily applies to a person who has been declared a proclaimed offender and has absconded to evade trial.

No Immediate Prospect of Arrest

The Court must be satisfied that there is no immediate prospect of arresting the proclaimed offender.

Ninety-Day Waiting Period

The trial cannot commence until 90 days have elapsed from the date of framing of charge.

Legal Representation

If the proclaimed offender has no advocate, the State must provide an advocate at State expense.

Appeal Requirement

A proclaimed offender seeking to appeal must present themselves before the appellate Court.

Three-Year Period

No appeal against conviction shall lie after three years from the date of judgment.

Important Distinctions

Section 355 and Section 356

Section 355 concerns dispensing with personal attendance in certain circumstances.

Section 356 concerns the actual inquiry, trial and judgment of a proclaimed offender in absentia after statutory safeguards are satisfied.

Section 356 and Section 299 CrPC

Section 299 CrPC primarily dealt with recording evidence in the absence of an absconding accused.

Section 356 BNSS goes further by providing a framework for conducting the trial itself and pronouncing judgment in the absence of a proclaimed offender.

Trial in Absentia and Ordinary Absence

The ordinary absence of an accused does not automatically permit a trial in absentia.

Section 356 applies only when the specific statutory conditions are satisfied.

Common Confusions

Can every absconding accused be tried in absentia?

No.

The requirements of Section 356 must be satisfied, including the person’s status as a proclaimed offender, absconding to evade trial and the absence of an immediate prospect of arrest.

Can the Court immediately begin the trial after declaring someone a proclaimed offender?

No.

The Court must comply with the safeguards prescribed by Section 356, and the trial cannot commence until 90 days have elapsed from the date of framing of charge.

What happens if the proclaimed offender has no lawyer?

The Court must provide an advocate for the defence at the expense of the State.

Can evidence recorded in the absence of the accused be used?

Yes.

Section 356 permits prosecution witness depositions already recorded by the competent Court to be used against the proclaimed offender.

Can the accused later examine the evidence?

Yes, in appropriate circumstances.

If the proclaimed offender is later arrested and produced or appears during the trial, the Court may, in the interests of justice, allow the accused to examine evidence recorded in their absence.

Can a proclaimed offender appeal without appearing before the appellate Court?

No.

The proclaimed offender must present themselves before the appellate Court.

Topic at a Glance

• Section: 356, BNSS, 2023
• Subject: Inquiry, trial or judgment in absentia of proclaimed offender
• Nature: Trial-in-absentia provision
• Person covered: Proclaimed offender who has absconded to evade trial
• Additional requirement: No immediate prospect of arrest
• Reasons: Must be recorded in writing
• Waiting period: 90 days from framing of charge
• Arrest warrants: Two consecutive warrants with at least 30 days between them
• Public notice: Publication in a national or local daily newspaper
• Other notice: Relative or friend, residence and concerned police station
• Legal representation: State-funded advocate where necessary
• Evidence: Previously recorded prosecution evidence may be used
• Electronic procedure: Audio-video recording of witness evidence may be used
• Appeal: Proclaimed offender must present themselves before appellate Court
• Appeal limitation: Three years from the date of judgment
• Related provision: Section 84 BNSS

Quick Revision

• Section 356 BNSS deals with trial in absentia of proclaimed offenders.
• It applies where the proclaimed offender has absconded to evade trial.
• There must be no immediate prospect of arrest.
• The Court must record its reasons in writing.
• Absconding to evade trial is deemed to operate as a waiver of the right to be present and tried in person.
• The trial cannot begin until 90 days after framing of charge.
• Two consecutive arrest warrants must be issued.
• There must be at least 30 days between the two warrants.
• A notice must be published in a national or local daily newspaper.
• The proclaimed offender’s relative or friend, if any, must be informed.
• Notice must also be displayed at the person’s residence and the relevant police station.
• If the accused has no advocate, the State must provide one at its expense.
• Previously recorded prosecution witness depositions may be used.
• Audio-video electronic means may be used for recording witness evidence.
• The Court may continue the trial and pronounce judgment despite the accused’s absence.
• An appeal requires the proclaimed offender to present themselves before the appellate Court.
• No appeal against conviction lies after three years from the date of judgment.
• Section 356 is substantially different from Section 355, which deals only with dispensing with personal attendance in certain circumstances.

ALSO READ: Section 355 – Provision for inquiries and trial being held in absence of accused in certain cases

Conclusion

Section 356 BNSS provides a comprehensive mechanism for dealing with proclaimed offenders who deliberately abscond to evade criminal trials. It prevents the administration of justice from being indefinitely stalled merely because an accused chooses to remain outside the reach of the Court.

At the same time, the provision contains important safeguards, including repeated arrest warrants, public notice, communication to relatives or friends, notices at the accused’s residence and police station, a 90-day waiting period and State-funded legal representation.

Section 356 therefore seeks to balance the accused’s right to participate in criminal proceedings with the larger need to ensure that deliberate absconding does not frustrate the administration of criminal justice.