Authors:
Mr. Sandeep Devashish Das, Ms. Kanak Malik, Mr. Tanishq Juneja
The legacy of Lord Macaulay was overturned on 1 July 2024 when the Indian Penal Code, 1860 (“IPC”), the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 (“CrPC”) were repealed and new statutes came in their place. One of the significant changes brought about by these new statutes includes the introduction of the concept of ‘trial in absentia’ under the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”)[1], which has replaced the erstwhile CrPC.
RATIONALE OF CONDUCTING TRIALS IN ABSENTIA
Issues created by accused individuals evading trial
Courts in India have been cognizant of the rising issue of accused persons absconding abroad and have noted the alarming trend of abscondence which causes delay in trials[2]. The most famous example of accused individuals absconding from their impending trial is perhaps of Vijay Mallya, the former owner of the now defunct Kingfisher Airlines, who fled to the U.K. amid myriad accusations of bank fraud and money laundering strewn against him.
Since Mallya’s moonlight flit, he has been declared as a ‘proclaimed offender’ under the Indian laws and has had contempt orders issued against him by the Supreme Court of India. Even his passport has been revoked and he is being chased by more than a dozen banks for repayment of their dues. He is currently the subject of persistent extradition efforts by the Indian Government. Yet, most of these efforts have remained futile, and he remains a fugitive residing abroad, safe from the rigors of the trial which await him in India.
Other notable examples include individuals like Nirav Modi and Mehul Choksi, who similarly fled India upon realizing that they would be prosecuted by the Indian authorities. In fact, in 2018, the Ministry of Law and Justice submitted before the Supreme Court of India that it was already seized of the situation and was in the process of amending the law to introduce requisite provisions for trial in absentia [3].
Simply put, trial ‘in absentia’ refers to a criminal trial which shall be continued by a court in the absence of the person accused. This is premised upon the fact that when an accused has willfully absconded to escape criminal prosecution, the proceedings pending against such a person in India are stalled and the aggrieved individuals along with the authorities are left in a lurch. In cases where such a trial leads to conviction, extradition of the accused person may be pursued by the authorities on the strength of such conviction. A conviction would also allow the authorities to attach, confiscate and sell the property of the convicted person.
OLD LAW
Previously, under the CrPC, an accused individual was required to appear personally before the courts to furnish a bail bond[4]. Even the evidence in a trial would be taken in the presence of the accused to ensure fairness[5]; this was subject to certain exceptions, such as situations where the accused was absconding and there was no real prospect of arresting them, or where the offence was conducted by unknown persons[6]. Even the inquiry and the trial could only be conducted in absence of the accused where (a) the Court dispensed with the personal attendance of the accused, or (b) where the accused was represented by a counsel.[7]
If the accused individual does not appear before the court, the trial would be adjourned and the case would be sent to the cold storage[8], to be revived only once the accused appears.
NEW LAW – SECTION 356 OF THE BNSS
The position under the CrPC has now changed with the advent of BNSS, which has introduced the concept of conducting trials ‘in absentia’[9]. Notably, this provision is only applicable to individuals who have been declared as ‘proclaimed offenders’[10] and where the offences involved are punishable with imprisonment of 10 years or more, or imprisonment for life or with death.
Waiver of right to be present
Where the proclaimed offender has absconded to evade the impending trial and there is no real possibility of arresting him/her, the BNSS provides that it shall be deemed that the accused has waived his/her right to be present and tried in person. Here, the conduct of the absconder is deemed to be waiver.
Interestingly, Section 356(3) of the BNSS provides that the proclaimed offender may be represented by a lawyer. Further, where he/she is not represented by a lawyer, the state government would appoint one at their own expense.
Punishment for absconders under the IPC and BNS
Notably, under the IPC, if an accused absconds with a view to avoid summons to appear before a court, he/she may be punished for the same.[11] Furthermore, if an accused does not appear as per the required proclamation under the CrPC, he may be punished for 3 to 7 years and may as well be declared a proclaimed offender.[12]
These provisions have been largely retained in the Bharatiya Nyaya Sanhita, 2023 (“BNS”), which has replaced the IPC. The BNS also provides for punishing individuals who abscond to avoid service or other proceedings[13] and who fail to appear at the designated time and place even after a proclamation has been issued against them[14].
Considering this, it will be an anomaly that an accused individual who has been declared as a proclaimed offender and is liable to be punished as per the substantive criminal law is being represented by a lawyer, who may appear before the court representing the proclaimed offender on his instructions. This would mean that if the accused is acquitted in the trial, he/she would remain a proclaimed offender and would still be charged with a separate offence.
Conclusion of the trial and limited right to appeal
The new laws also provide that a trial in absentia shall not be halted even if the accused person is arrested and produced at a later stage or appears at the conclusion of such a trial.[15] The proclaimed offender will only be allowed to examine the evidence recorded in his/her absence.
To compel the proclaimed offender to appear and to ensure accountability for an absconding accused who willfully avoided the trial, the BNSS further stipulates that no appeal shall lie against the judgment rendered after the trial in absentia unless the individual appears before the court where the appeal has been filed.
TRIAL IN ABSENTIA IN OTHER JURISDICTIONS
The concept of trials in absentia has been recognized by different jurisdictions. In fact, while dealing with a case where delays in criminal trials were being deliberated, the Supreme Court took a cue from Bangladesh and referred to their criminal law[16], which contains a similar provision as Section 356 of the BNSS. This was referred to in the context of exploring solutions to remedy the prolonged delays in criminal trials in India[17]. The Supreme Court ultimately observed that it was for the relevant authorities to consider such an amendment.
Even the U.K. has a provision for conducting trials in the absence of an accused/defendant where the right to appear has been waived and when the trial will be fair despite the absence of the accused / defendant[18]. Similar to India’s law, if the accused individual is absent, his/her ignorance to the consequences may be treated as a waiver of his/her right to be present during the trial. However, the House of Lords has cautioned that such a measure must be taken as the ‘last resort’ and this power should be exercised sparingly[19]
Trial in absentia also finds place in the laws of New Zealand[20] and Canada, where courts can proceed in the absence of the accused where they are of the opinion that the accused is deliberately evading the trial and is willfully absent[21]. While the USA federal law of criminal procedure prohibited trials in absentia, it has been observed that trials can be conducted in the absence of the individual, provided they have willfully and knowingly waived their right to be present[22].
Balancing speed and justice: What’s next?
Section 356 has been lauded by some for paving the way for prosecution of willful absconders and reducing the delays caused in criminal trials, which would ultimately lead to speedy disposal and reduction in the backlog of cases. It will also enable effective prosecution of international and multinational companies who deliberately choose not to appear in when arrayed in criminal proceedings.
However, it has also raised concerns regarding the violation of certain crucial constitutional safeguards guaranteed to individuals and the basic tenets of natural justice, as it places co-accused individuals at an unequal footing, causing the affected party grave prejudice. It also fails to deal with situations where an accused person was prevented from appearing due to genuine reasons or where sufficient cause is shown for the absence. The new provision for trial ‘in absentia’ also fails to take into account cases of ‘deficient service’. Judicial magistrates would now be required to assume greater responsibility while ensuring the service of summons, bearing in mind that in Indian jurisprudence, for criminal cases, summons have to be actually served on the accused individual, and mere knowledge of the pending proceedings would not suffice. Magistrates will not have to take a stricter and narrower view while considering whether proper service has been done to the accused individual.
The Constitution of India[23] provides that no person shall be denied the right to be defended, yet Section 356 of the BNSS has provided that the subsequent appearance of the accused individual shall have no effect on the trial. This provision has also faced criticism for being in teeth of certain international treaties ratified by India, which contain provisions underscoring the importance of an accused individual being present during his/her trial[24].
The BNSS was notably enacted to erase the colonial legacy of India and usher a new regime which is in tandem with the present times and the corresponding technological advancements[25]. Its practical implications are yet to be seen to assess its effectiveness in improving the criminal justice system in India.
Footnote(s):
[1] Bharatiya Nagarik Suraksha Sanhita, 2023 (Act No. 46 of 2023) (BNSS)
[2] Hussain and Another Vs. Union of India, (2017) 5 SCC 702; Kader Khan Vs. State of West Bengal, 2022 SCC OnLine Cal 1038.
[3] Bachhe Lal Yadav Vs. Akhand Pratap Singh and Anr., 2018 SCC OnLine SC 3813.
[4] Section 88 – Power to take bond for appearance, Code of Criminal Procedure, 1973 (CrPC).
[5] Section 273, CrPC.
[6] Section 299, CrPC.
[7] Section 317, CrPC.
[8] Section 317 (4), CrPC.
[9] Section 356, BNSS.
[10] Section 84, BNSS.
[11] Section 172, IPC
[12] Section 174A, IPC
[13] Section 206, BNSS.
[14] Section 209, BNSS.
[15] Section 356 (6), BNSS.
[16] Section 339-B, Code of Criminal Procedure, 1898 (Act V of 1898), Bangladesh.
[17] Hussain & Anr. Vs. Union of India, (2017) 5 SCC 702.
[18] Rule 25.2, Part 24, The Criminal Procedure Rules 2020, available at <https://www.legislation.gov.uk/uksi/2020/759/part/25/made> accessed on 6 Aug 2024.
[19] Regina v. Jones, [2002] UKHL 5.
[20] Section 124, Criminal Procedure Act, 2011.
[21] Section 475, Criminal Code, R.S.C., 1985, c. C-46,
[22] ‘in absentia’, Legal Information Institute, Cornell Law School, available at <https://www.law.cornell.edu/wex/in_absentia> accessed on 6 Aug 2024.
[23] Article 22, Constitution of India.
[24] Article 14, International Covenant on Civil and Political Right (ICCPR), 1976:
…3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
…
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;…
[25] Ministry of Law and Justice organises Conference titled ‘India’s Progressive Path in the Administration of Criminal Justice System’ (21 April 2024), Ministry of Law and Justice, Press Information Bureau, available at <https://www.pib.gov.in/PressReleasePage.aspx?PRID=2018392> accessed 6 Aug 2024.