Trial in Absentia of Proclaimed Offenders — BNSS Innovation

Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — a wholly new provision with no parallel in the Code of Criminal Procedure, 1973 (CrPC) — empowers a Court to inquire into a charge, try the case and pronounce judgment against a proclaimed offender even if he is not physically before the Court. The provision is the most consequential structural reform in the BNSS. It pierces the rule that a criminal trial cannot proceed in the accused's absence, and it does so for a defined, narrow class of accused — those who have already been declared proclaimed offenders under Section 84 BNSS (previously Section 82 CrPC) and have failed to come forward within ninety days thereafter.

The reform addresses an evil long noted in trial-court statistics: high-profile economic offenders, terror-funding accused and politically connected absconders had learned that absconding to a foreign jurisdiction was the surest route to indefinite suspension of trial. Witnesses aged, evidence faded, and the prosecution case rotted on the file. Section 356 BNSS does not allow the absconder to convert his absence into a perpetual stay.

Two distinct provisions on absence — Sections 355 and 356 BNSS

The aspirant must immediately distinguish two provisions in Chapter XXVII BNSS that deal with absence of the accused, because state mains papers regularly mix them.

1. Section 355 BNSS (previously Section 317 CrPC) — exemption from personal attendance during inquiry or trial. The accused is represented by an advocate and is voluntarily exempted by Court order from physical attendance for reasons recorded in writing. The trial continues in his absence with his consent and through his counsel. The BNSS adds an explanation that personal attendance includes attendance through audio-video electronic means, and replaces “pleader” with “advocate”.
2. Section 356 BNSS — newly added — trial, inquiry or judgment in absentia of a proclaimed offender. The accused has not consented to absence; he has absconded. The trial continues without him because the State refuses to allow flight to defeat the criminal process.

Section 355 is consensual exemption; Section 356 is non-consensual continuation. The first is a convenience; the second is a deterrent. The first dovetails with the chapter on the form and contents of a judgment (the verdict is announced in the accused's planned absence); the second forces a verdict on a fugitive who has refused to appear at all.

The statutory route to a trial in absentia

The trial-court reader should walk through Section 356 BNSS as a sequence. The provision does not allow an instant trial in absentia; it builds in a graduated cushion of process before the Court is permitted to proceed without the accused.

1. Step 1 — Proclamation under Section 84 BNSS. The trial Court must already have issued a proclamation under Section 84 BNSS (previously Section 82 CrPC) requiring the accused to appear at a specified place and on a specified date not less than thirty days from publication. Proclamation is itself a serious order and is governed by the rules discussed in the chapter on processes to compel appearance — summons, warrants, proclamation and attachment.
2. Step 2 — Wait of ninety days. Section 356(1) BNSS requires the Court to wait for ninety days from the date of publication of the proclamation. Only after that period has elapsed without the accused presenting himself can the Court take the next step.
3. Step 3 — Recorded reasons. The Court must record reasons in writing for its satisfaction that there exists no immediate prospect of arrest. Mere passage of ninety days is not enough; the Court has to apply its mind. This is the safeguard that prevents a mechanical leap from proclamation to trial.
4. Step 4 — Appointment of counsel. The Court appoints an advocate to represent the absconding accused. If the proclaimed offender has previously engaged a counsel of his own choice in the proceedings, that counsel is preserved; if not, a counsel is appointed at the expense of the State. The trial in absentia thus does not become a one-sided affair — defence is structurally represented even when the defendant is not.
5. Step 5 — Inquiry, trial and judgment. The Court proceeds to record evidence, hear arguments and pronounce judgment. The proceedings are valid as if the accused were physically present. The judgment is enforceable on his apprehension.

What proclamation does in the run-up

The pre-condition that the absconding accused be a proclaimed offender under Section 84 BNSS makes the proclamation provisions critical. The Court issues a written proclamation requiring the absconder to appear at a specified place and time not less than thirty days from publication. The proclamation must be affixed at a conspicuous place at the Court-house, served on the accused's last-known residence, affixed at a conspicuous part of the village, and may be published in a newspaper circulating in the place where the accused ordinarily resides.

Where the proclamation is in respect of an offence punishable with death, life imprisonment or imprisonment of ten years or more, and the accused fails to appear at the specified place and time, the Court may, after such inquiry as it thinks fit, formally pronounce him a proclaimed offender. It is this declaration that switches Section 356 BNSS on. The Supreme Court's traditional learning on proclamation — that the conditions are mandatory and a breach renders subsequent steps a nullity — therefore acquires renewed importance: a defective proclamation cannot be the foundation of an in-absentia trial.

Continuation despite absence — what the trial looks like

Once the Court takes the step under Section 356 BNSS, the trial unfolds in its ordinary procedural shape. Charge is framed in the accused's absence on the basis of the material before the Court. Prosecution witnesses are examined and cross-examined by the appointed counsel. The case under Sessions trial procedure proceeds through the stages of framing of charge, prosecution evidence, defence evidence and arguments. The judgment is pronounced and signed in open Court.

Two practical features of the trial in absentia deserve special note for the student preparing for state-judiciary mains.

• Statement of accused. The mandatory examination of the accused under Section 351 BNSS (previously Section 313 CrPC) cannot meaningfully take place in his absence. Courts have read into Section 356 a relaxation of this requirement — the trial proceeds despite the impossibility of the personal examination — so long as the accused's failure to appear is wilful.
• Audio-video electronic attendance. Although Section 356 BNSS does not expressly require it, the related audio-video infrastructure introduced by Section 105 BNSS for searches and seizures is also available for trial proceedings under the explanation to Section 355 BNSS. If the absconding accused later appears, his statement can be recorded through video link without dragging the trial back to its starting point.
• Forensic mandate. Where the offence carries seven years or more, the visit of a forensic expert to the scene under Section 176(3) BNSS becomes mandatory. The reader who has worked through the chapter on mandatory forensic investigation in serious offences will recognise the integrated design: the BNSS pushes investigation toward forensics, then permits trial-in-absentia for those most likely to flee.

Legislative background — the economic-offender flight problem

The Statement of Objects and Reasons accompanying the BNSS in 2023 explains the provision in plain language. The drafters identified the recurring spectacle of high-profile economic and terror-related accused fleeing to foreign jurisdictions, often through advance planning, while the Indian criminal process stalled. The Fugitive Economic Offenders Act, 2018 had partly addressed the property side of this problem — allowing the Government to attach and confiscate assets of declared fugitive economic offenders — but it did not touch the trial. Witnesses, particularly chartered accountants, branch managers and entry-level employees, became increasingly difficult to trace as years passed. Documentary evidence held with electronic service providers expired in retention cycles. The prosecution was, in effect, defeated by attrition.

Section 356 BNSS rebalances the equation. The premise is that an accused who has absconded after a properly issued proclamation has by his own conduct withdrawn from the procedural protection of physical presence. The Court is not punishing him for absence; it is refusing to let the criminal process collapse because of his absence.

For the judiciary aspirant, the legislative background matters because the BNSS-specific innovations chapter on the scheme and transition of the new procedural Code repeatedly returns to two themes — speed of trial and unbreakable trial momentum. Section 356 is the structural tool that delivers the second theme. Without it, the speed-oriented amendments to limitation and the bail rationalisation under the bail-and-bonds chapter would be eroded by the absconder's ability to halt trial indefinitely.

Constitutional overlay — Article 21 and the right to be present

The constitutional concern is obvious. The right of an accused to be present during his trial flows from Article 21 of the Constitution and from Article 14(3)(d) of the International Covenant on Civil and Political Rights, to which India is a party. The Supreme Court has repeatedly held in cases such as Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81 and Kishore Singh v. State of Rajasthan AIR 1981 SC 625 that a fair trial is not a procedural luxury but a constitutional command, and presence of the accused is a structural element of fair trial.

Section 356 BNSS does not abolish the right; it suspends it for an accused who has himself withdrawn from the process. The Constitution Bench in Maneka Gandhi v. Union of India (1978) 1 SCC 248 had already settled that procedure under Article 21 must be just, fair and reasonable. The Supreme Court will, in due course, be asked to test Section 356 against that standard. The textual safeguards — ninety-day wait, recorded reasons, mandatory representation by counsel at State expense, validity dependent on a properly issued proclamation — are the markers that the BNSS has read Maneka seriously and built process around the substantive deprivation.

Comparable in-absentia provisions exist in special statutes — Section 33 of the Unlawful Activities (Prevention) Act, 1967 and Section 13 of the National Investigation Agency Act, 2008 — for terror-related offences, and they have weathered constitutional challenge. Section 356 BNSS now generalises the technique and applies it across the IPC/BNS landscape, subject to the proclamation precondition.

Effect on appeal and on later appearance

The architecture of the BNSS preserves the absconder's appellate rights. A judgment pronounced in absentia is, on the accused's later apprehension or surrender, served on him and his right of appeal under the criminal-appeals chapter commences from the date of service. He cannot, however, demand a retrial as of right; the trial that took place in his absence is the trial. The Court that convicted him may, in exceptional circumstances, recall its order under Section 356 if the absconder shows that his absence was caused by a circumstance beyond his control — coma, custody in another jurisdiction, fraudulent service — but the burden is on him.

For the inverse situation — where the proclaimed offender appears during the trial and not after judgment — Section 356 BNSS contemplates that the trial does not start over. Proceedings continue from the stage at which they had reached. The accused, on his appearance, can apply for re-examination of any prosecution witness, but the Court is not bound to allow it; the test is whether the recall is necessary in the interests of justice. This calibrated rule prevents an accused from absconding strategically until the case is half-tried and then surfacing to demand a fresh start.

Section 356 BNSS read with the international architecture

The trial-in-absentia mechanism is most powerful when paired with the cross-border tools the BNSS retains. A proclaimed offender in a contracting State can be the subject of letters of request under Sections 112 and 113 BNSS for evidence, and his property can be attached and forfeited under Sections 111 to 124 BNSS using the route described in the chapter on attachment and forfeiture of proceeds of crime. Section 86 BNSS, also newly added, allows the Court to identify and attach the absconder's foreign property. Section 356 then completes the loop: even while the absconder enjoys the protection of foreign sovereignty, the Indian process does not freeze.

The deterrent message of the package is clear. Flight no longer earns the absconder an indefinite stay. His domestic property can be attached. His foreign property can be reached through the contracting-State mechanism. His trial proceeds against him. His judgment, while not enforceable until apprehension, hangs over him and informs every extradition request that India later makes to a treaty partner. In a long line of high-profile economic-offender cases, this combination has been precisely the missing piece.

Procedural traps and exam-angle distinctions

Three traps recur in objective papers and short-answer questions and the reader should commit them to memory.

1. Section 355 vs Section 356 BNSS. Consensual exemption with counsel vs non-consensual continuation against a proclaimed offender. The first is recorded with the accused's say-so; the second is recorded over his refusal to appear.
2. Proclamation under Section 84 BNSS — the precondition. If the proclamation is defective — not less than thirty days not given; mandatory mode of publication not followed; reasons not recorded — the entire Section 356 trial is liable to be quashed under the High Court's inherent powers under Section 528 BNSS (previously Section 482 CrPC). The aspirant who has worked through the older case-law on Section 82 CrPC will recognise the long shadow this throws over the BNSS provision.
3. Ninety days vs thirty days. The Section 84 proclamation gives the accused a thirty-day appearance window. Section 356 BNSS adds a further ninety-day wait after publication. The two periods are not the same and they do not run from the same event. An examiner will frame an MCQ to test whether the candidate has confused them.

Comparative perspective — how other systems handle absentia

Trial in absentia is not unknown to common-law systems, and the BNSS borrows the architecture rather than inventing it. In England and Wales, Section 11 of the Magistrates' Courts Act, 1980 permits the Court to proceed in the absence of an adult accused unless it appears contrary to the interests of justice; the Court of Appeal in R v. Jones [2002] UKHL 5 held that even in the Crown Court an accused who deliberately absents himself can have the trial proceed without him, provided the discretion is exercised with care.

In the United States, Federal Rule of Criminal Procedure 43 permits trial to continue if the defendant, having been present at the start, voluntarily absents himself. The accused must have been present at the commencement of trial; pure trial-in-absentia at the threshold is constitutionally suspect under the Confrontation Clause of the Sixth Amendment. The European Court of Human Rights, in Sejdovic v. Italy [2006] ECHR 181, held that an in-absentia conviction is compatible with Article 6 ECHR only if the State's law clearly affords the accused a right of retrial on his return, unless the accused has unequivocally waived his right to be present.

Section 356 BNSS sits between these two ends of the spectrum. It is closer to the English and ECHR positions than to the US one, in that it permits trial in absentia from the threshold (subject to the proclamation precondition) but does not give the accused an automatic right of retrial. The Indian model leans on the proclamation step as the equivalent of an unequivocal waiver: a person who refuses to appear within ninety days after a properly published proclamation has, in the eyes of the Code, chosen to forfeit his right to be present.

Working with extradition and Interpol Red Notices

The practical force of Section 356 BNSS turns on what happens after judgment. The trial Court delivers a conviction and sentence in absentia; the absconder remains abroad. The judgment, while pronounced and signed, is not enforceable until the accused is apprehended. Three mechanisms then come into play.

• Interpol Red Notice. India routes a request through the Central Bureau of Investigation, which approaches the Interpol General Secretariat in Lyon. A Red Notice is issued asking member countries to provisionally arrest the accused pending extradition. The conviction in absentia, while not the operational basis of the Red Notice (the Notice is based on a non-bailable warrant), strengthens the file by demonstrating that the trial has not stalled.
• Extradition request. Where India and the foreign State have an extradition treaty, the Ministry of External Affairs routes a formal extradition request. The treaty's dual criminality requirement is easily met where the predicate offence is a serious cognisable crime under the BNS. The treaty's specialty rule confines the accused's prosecution on return to the offences for which extradition is granted.
• Mutual legal assistance. Even where extradition is contested, evidence held in the foreign State can be obtained through letters of request under Sections 112 and 113 BNSS. Property of the absconder can be attached and forfeited under the architecture discussed in the chapter on reciprocal arrangements with foreign countries.

The interplay matters because the absconder's strategy of indefinite avoidance has historically depended on the Indian process freezing during his absence. Section 356 BNSS removes that freeze. Combined with the in-rem property remedy of the Fugitive Economic Offenders Act, 2018, the architecture now applies pressure on three fronts — person, property and proceedings.

How Section 356 fits the larger BNSS reform

The trial-in-absentia provision is one node in an integrated reform. Section 173 BNSS (previously Section 154 CrPC) speeds up registration through the Zero FIR and e-FIR mechanism; Section 176(3) BNSS now mandates forensic examination in 7-plus-year offences; Section 105 BNSS pushes audio-video documentation of seizure; Section 107 BNSS attaches and forfeits the proceeds of crime. Section 356 BNSS removes the absconder's veto over the trial. Read together, the BNSS does not just renumber the CrPC; it shifts the centre of gravity of Indian criminal procedure toward speed, forensic foundation and unbreakable trial momentum.

For the trial-court reader and the judiciary aspirant, Section 356 is therefore not a peripheral curiosity. It is part of the answer to a recurring mains question: how does the BNSS treat the chronic delay of criminal trials in India? The provision belongs in any answer alongside the timeline reforms of Section 346 BNSS (limit on adjournments) and the renewed limitation regime for cognizance. The candidate who works through the full set of BNSS notes will see Section 356 as one of the most exam-relevant innovations of the new procedural Code.

Frequently asked questions

Does Section 356 BNSS apply to every accused who fails to appear?

No. The provision applies only to a proclaimed offender — that is, a person against whom a proclamation under Section 84 BNSS (previously Section 82 CrPC) has been issued and who has failed to appear within the period of the proclamation. It does not apply to an accused who is merely absent on a particular hearing date, or who has been exempted with consent under Section 355 BNSS (previously Section 317 CrPC). The proclamation is the door; without a valid proclamation, Section 356 cannot be opened.

How long must the Court wait before commencing trial in absentia?

Section 356(1) BNSS requires the Court to wait for ninety days from the date of publication of the proclamation under Section 84 BNSS. Only after that period has elapsed without the accused presenting himself can the Court, after recording reasons in writing, proceed to inquiry, trial or judgment in absentia. The ninety-day period is in addition to, not in substitution of, the not-less-than-thirty-day appearance window built into the proclamation itself.

Is the absconding accused entitled to a lawyer in a Section 356 BNSS trial?

Yes. The accused's previously engaged counsel of choice continues to represent him; if he has none, the Court appoints an advocate at the expense of the State. The absence of the accused does not produce an absence of defence. This safeguard is one of the textual answers to the constitutional concern that an in-absentia trial may otherwise become a one-sided affair.

Can a proclaimed offender demand retrial when he later surrenders or is apprehended?

No, not as of right. The trial that took place in his absence is the trial. The accused may, on later appearance or apprehension, apply for recall of the order under Section 356 if he can show that his absence was caused by a circumstance beyond his control, but the burden lies on him. He retains his right of appeal, time for which runs from the date the judgment is served on him.

Is the personal examination of the accused under Section 351 BNSS dispensed with?

In the in-absentia trial, the personal examination corresponding to Section 313 CrPC (now Section 351 BNSS) cannot be carried out in the ordinary way because the accused is not before the Court. Section 356 BNSS by necessary implication relaxes this requirement; the trial proceeds despite the impossibility of personal examination, so long as the accused's failure to appear is wilful and the Court has recorded reasons. On later appearance, the Court may, in the interests of justice, allow re-examination of selected witnesses.

How is Section 356 BNSS different from Section 33 UAPA or Section 13 NIA Act?

Section 33 of the Unlawful Activities (Prevention) Act and Section 13 of the National Investigation Agency Act allow trial in absentia in terror-related cases. They are subject-specific and apply only to a defined class of offences. Section 356 BNSS generalises the technique. It applies across the IPC/BNS landscape provided the precondition of a Section 84 BNSS proclamation is met. The architecture is the same; the field of operation is much wider.