Absconding Accused Waive Right To Be Present; Trial In Absentia Under Section 356 BNSS Is A Landmark Provision: Allahabad High Court

"Notwithstanding anything contained in this Sanhita or in any other law for the time being in force, when a person declared as a proclaimed offender... has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person," Allahabad High Court, in a path-breaking judgment, has extensively delineated the statutory procedure under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) for dealing with absconding accused, emphasizing that Section 356 BNSS is a "landmark provision" that enables trial in absentia.

A bench of Justice Praveen Kumar Giri observed that when a proclaimed offender deliberately evades the law, such conduct is legally deemed a waiver of their right to be present during the trial, allowing the court to proceed to judgment in their absence.

The applicant, Ravi alias Ravindra Singh, was an accused in a case involving Sections 307 and 504 of the IPC. Although he was released on bail and was present when charges were framed in February 2024, he subsequently stopped appearing before the trial court. This led to the issuance of a series of non-bailable warrants (NBWs), a proclamation under Section 82 CrPC, and eventually an order of attachment under Section 83 CrPC. The applicant moved the High Court under Section 528 BNSS seeking to quash the NBW issued against him.

The primary question before the court was the scope and application of Section 356 BNSS regarding trials in the absence of a proclaimed offender. The court also examined the mandatory procedural "Lakshman Rekha" or timelines fixed under the BNSS for various stages of criminal proceedings. Furthermore, the court was called upon to determine the accountability of investigating officers, prosecutors, and judicial officers in ensuring the expeditious disposal of cases involving absconding accused.

Section 356 BNSS: A New Era Of Trial In Absentia

The Court highlighted that Section 356 of the BNSS introduces a transformative concept into the Indian criminal justice system by allowing inquiries, trials, and judgments to be conducted in the absence of a proclaimed offender. The bench noted that this provision is specifically designed to ensure that the wheels of justice do not grind to a halt simply because an accused chooses to flee.

"If a proclaimed offender absconds to evade trial and there is no immediate prospect of arrest, it shall be deemed to operate as a waiver of the right of such person to be present and tried in person, and the Court shall... proceed with the trial in the like manner and with like effect as if he was present."

Mandatory Pre-conditions For Trial In Absentia

The bench clarified that while the law permits trial in absentia, it prescribes strict procedural safeguards to protect the interests of justice. These include the issuance of two consecutive warrants with at least a 30-day interval and a public notice in a national or local daily newspaper giving the offender 30 days to appear. Additionally, the court must inform the accused's relatives and display trial information at the accused’s last known residence and the local police station.

Court Explains The 90-Day Cooling Period

The Court emphasized that as per the proviso to Section 356(1) BNSS, a trial in absentia cannot commence until a period of 90 days has elapsed from the date of framing the charge. This ensures a reasonable window for the accused to return to the legal process before the trial proceeds without them. The bench also noted that if the offender is unrepresented, the State must provide an advocate for their defense at the public expense.

Delineation Of Four Stages Of Absconding Accused

The High Court meticulously categorized four distinct stages at which an accused might abscond: during investigation, while on bail during investigation, after summoning, or after the framing of charges. For each stage, the court mapped out the corresponding statutory procedures under the BNSS, the Bharatiya Nyaya Sanhita (BNS), and the U.P. Police Regulations to ensure that investigation, inquiry, and trial are completed as per the law.

Strict Timelines As The BNSS 'Lakshman Rekha'

Justice Giri pointed out that the BNSS has introduced several strict timelines to accelerate the criminal justice process, which the court termed a "Lakshman Rekha." These include completing preliminary enquiries within 14 days, supplying documents to the accused within 14 days of appearance, and completing committal proceedings within 90 to 180 days. The court noted that even the framing of charges must now be completed within 60 days of the first hearing on the charge.

"To ensure speedy proceedings under the Bharatiya Nagarik Suraksha Sanhita, a time limit (Luxman Rekha) has been fixed for every stage... even in the absence of an absconded accused."

Accountability Of Investigating Officers And Prosecutors

The ruling places a heavy burden of accountability on the police and the prosecution. The bench directed that any failure to comply with the service of summons or warrants must be recorded, and the concerned officials may face action under Section 199 BNS (Public servant disobeying direction under law) or Section 29 of the Police Act, 1861. The court also cited Section 20 of the BNSS, holding the Directorate of Prosecution responsible for monitoring and expediting cases punishable by seven years or more.

Judicial Officers Liable For Unnecessary Adjournments

The High Court did not exempt the judiciary from scrutiny, stating that if a presiding officer adjourns a case involving an absconder without cogent reasons, they could face departmental action for negligence or dereliction of duty. The bench emphasized that Section 346 BNSS mandates that trials proceed on a day-to-day basis until all witnesses are examined, specifically restricting the number of adjournments.

Applicability Of BNSS To Pending IPC Cases

Regarding the transition between old and new laws, the court relied on the precedent in Deepu v. State of U.P. to hold that for proceedings where cognizance is taken on or after July 1, 2024, the BNSS procedure applies. The court observed that even if the offence occurred under the IPC, the "more beneficial procedure" of the BNSS—which includes the mechanism for trial in absentia—should be adopted to ensure the conclusion of trials against proclaimed offenders.

Preservation Of Evidence Under Section 335 BNSS

The Court noted that Section 335 BNSS (corresponding to Section 299 CrPC) remains a vital tool for recording prosecution evidence in the absence of an accused when there is no prospect of arrest. Such depositions remain admissible if the witness later becomes unavailable. The bench suggested that such recordings should preferably be made through audio-video electronic means to ensure transparency and accuracy.

"The court shall... proceed with the trial in the same manner and with the same effect, as if he was present and/or has participated in trial under this Sanhita and pronounce the judgment; accordingly."

The High Court disposed of the application by keeping the impugned NBW in abeyance for two months to give the applicant a final opportunity to surrender and cooperate. However, it issued comprehensive directions to the Director General of Police, the Director of Prosecution, and the Registrar General to circulate this judgment across the State. The court mandated that District Judges review the progress of trials against proclaimed offenders in their monthly monitoring cell meetings.

Date of Decision: May 05, 2026