Trial in Absentia: Chasing Ghosts

India is currently ushering in revised criminal laws, including a revised procedure code titled Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS), which will come into effect on 1 July 2024. This article aims to cover one of the important changes introduced under Indian law, which did not previously recognise the concept of a trial in absentia.

When multinational and foreign companies get embroiled in a criminal trial in India, primary concerns around service, arrest and the speed of trial assume importance. Particularly in cases where the clients have no presence in India, the legal process of serving summons on international entities/persons can take time.

In the above context, a trial in absentia refers to a legal proceeding that may continue despite the absence of the accused, including against the accused, during the trial. A trial in absentia is considered an exception to the principles of natural justice, the right to a fair trial and the right to defend oneself, which are immutable human rights contained in various human rights charters. These rights are also enshrined as fundamental rights in the Indian Constitution.

The Code of Criminal Procedure 1973 (CrPC) recognised certain procedures in cases where the accused was not present before the court, such as the segregation of trial between those present and the absentee, and the recording of evidence in such trials. However, it did not allow for trials in absentia.

The CrPC mandates that all evidence taken during the trial or other proceedings shall be taken in the presence of the accused, or, when their personal attendance is dispensed with, in the presence of their pleader. However, there are two exceptions contemplated under the CrPC:

In the first case, the court may proceed to examine the witnesses produced on behalf of the prosecution and record their depositions. These may be given in evidence against an accused once they are arrested and when the deponent cannot be secured or produced for the trial.

In the second case, if they are represented by a pleader, the accused’s presence may be dispensed with by the court, which nevertheless may direct the personal attendance of such accused at any subsequent stage of the proceedings. If the accused is not represented by a pleader, the court may either adjourn such inquiry or trial, or order that the case of such accused be tried separately. In other words, the court may split the trial, segregating the absentee and continuing with only those present.

The absence of an accused – deliberate or otherwise – can cause substantial delay in a trial. The Indian Supreme Court has recommended amendments to the CrPC to reduce the delay due to the absconsion of the accused during the trial.

Provisions for trials in absentia were introduced under the BNSS, which retains the provisions of the CrPC. A court may proceed if the accused disturbs the proceedings of the court or if their personal attendance is not required. However, more importantly, for the first time the BNSS introduced a specific provision for inquiry, trial or judgment in absentia of the proclaimed offender.

The BNSS provides that 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 them, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and, after recording reasons in writing, the court shall proceed with the trial as if the accused was present and pronounce the judgment.

Amongst many safeguards, under the BNSS the court can only undertake a trial in absentia once an accused person has been declared as a proclaimed offender/person. The court cannot commence the trial unless a period of 90 days has lapsed from the date of the framing of the charge. The court has to take steps to inform a relative or friend of an accused, if any, about the commencement of the trial.

The court also has to publish a notice in a national or local daily newspaper circulating in the place of the accused’s last known address, requiring the proclaimed offender to appear before the court for trial and informing them that the trial will commence in their absence if they fail to appear within 30 days from the date of such publication. Said notice may also be affixed on some conspicuous part of the house in which the accused ordinarily resides, and displayed in the police station of the district of the accused’s last known place of residence.

Where the court has examined any witnesses for prosecution, such statement shall be given in evidence against the proclaimed offender. If the proclaimed offender is arrested and produced or appears before the court during such trial, the court may allow said offender to examine any evidence that may have been taken in their absence. However, if an accused disappears during a trial, their voluntary absence shall not derail the trial, including the judgment, even if they are arrested and produced or appear at the conclusion of such trial.

The BNSS also provides that no appeal shall lie against the judgment in such trials, unless the proclaimed offender presents themselves before the court of appeal. Furthermore, no appeal against conviction shall lie after the expiry of three years from the date of the judgment.

Lastly, the BNSS also modernises the approach to such trials and provides that the deposition and examination of the witness may be recorded by audiovisual electronic means, as far as practicable, and that such recording shall be preserved.

Considering the above, not participating in a trial may no longer be an option for international clients that are not present in India. Any conviction, even under such trials, may have severe consequences for clients, even in their domestic jurisdiction, including reporting requirements. Furthermore, such conviction may be enforced upon such international clients and/or their officers through bilateral and/or mutual assistance treaties.