Section 356 – Bharatiya Nagarik Suraksha Sanhita(BNSS) – Inquiry, Trial Or Judgment In Absentia Of Proclaimed Offender.

Bharatiya Nagarik Suraksha Sanhita (BNSS) – Section 356

Code: Section 356 BNSS

(1) 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, whether or not charged jointly, 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, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, under this Sanhita and pronounce the judgment:

Provided that the Court shall not commence the trial unless a period of ninety days has lapsed from the date of framing of the charge.

(2) The Court shall ensure that the following procedure has been complied with before proceeding under sub-section (1), namely:—

(i) issuance of two consecutive warrants of arrest within the interval of at least thirty days

(ii) publish in a national or local daily newspaper circulating in the place of his last known address of residence, requiring the proclaimed offender to appear before the Court for trial and informing him that in case he fails to appear within thirty days from the date of such publication, the trial shall commence in his absence;

(iii) inform his relative or friend, if any, about the commencement of the trial; and

(iv) affix information about the commencement of the trial on some conspicuous part of the house or homestead in which such person ordinarily resides and display in the police station of the district of his last known address of residence.

(3) Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate for his defence at the expense of the State.

(4) Where the Court, competent to try the case or commit for trial, has examined any witnesses for prosecution and recorded their depositions, such depositions shall be given in evidence against such proclaimed offender on the inquiry into, or in trial for, the offence with which he is charged:

Provided that if the proclaimed offender is arrested and produced or appears before the Court during such trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence.

(5) Where a trial is related to a person under this section, the deposition and examination of the witness, may, as far as practicable, be recorded by audio-video electronic means preferably mobile phone and such recording shall be kept in such manner as the Court may direct.

(6) In prosecution for offences under this Sanhita, voluntary absence of accused after the trial has commenced under sub-section (1) shall not prevent continuing the trial including the pronouncement of the judgment even if he is arrested and produced or appears at the conclusion of such trial.

(7) No appeal shall lie against the judgment under this section unless the proclaimed offender presents himself before the Court of appeal

Provided that no appeal against conviction shall lie after the expiry of three years from the date of the judgment

(8) The State may, by notification, extend the provisions of this section to any absconder mentioned in sub-section (1) of section 84.

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Explanation of Section 356 BNSS

Purpose of This Section

Section 356 BNSS allows the trial of absconding offenders in their absence to prevent delays in justice. It ensures that a proclaimed offender cannot escape legal proceedings simply by evading arrest.

Key Provisions

1. Who Does This Apply To?
   • Any person declared a proclaimed offender under the law.
   • The offender must have absconded to evade trial.
   • There must be no immediate prospect of arresting him.
2. Trial in Absence
   • The Court can proceed with the trial in the absence of the accused and pronounce judgment.
   • However, the trial cannot commence until 90 days after framing of charges.
3. Procedural Safeguards Before Trial in Absentia
   Before proceeding with the trial, the Court must:
   • Issue two consecutive arrest warrants at least 30 days apart.
   • Publish a notice in a local or national newspaper informing the accused of the trial and giving him 30 days to appear.
   • Inform a relative or friend of the accused about the trial.
   • Post a notice at the accused’s last known residence and police station.
4. Legal Representation for Absconding Accused
   • If the absconding accused does not have a lawyer, the Court must appoint a defense lawyer at State expense.
5. Use of Recorded Evidence
   • Any prosecution witness statements recorded before the trial can be used as evidence against the absconding accused.
   • If the absconding accused later appears or is arrested, the Court may allow him to cross-examine earlier witnesses in the interest of justice.
6. Video Recording of Trial Proceedings
   • The Court should record the witness depositions using audio-video means, preferably via mobile phone, for future reference.
7. Trial Continues Even if Accused Appears Later
   • If the accused voluntarily remains absent after the trial has started, the trial will continue, and judgment can still be pronounced.
   • Even if he appears after conviction, the judgment remains valid.
8. Appeal Restrictions for Proclaimed Offenders
   • No appeal against the judgment unless the absconding accused appears before the appellate court.
   • Appeals against conviction must be filed within three years from the judgment date.
9. Extension of Provisions to Other Absconders
   • The State Government may extend these provisions to other absconders mentioned in Section 84 BNSS by notification.

Illustration

Example 1: A Fugitive Businessman Escaping Arrest

A businessman accused of fraud escapes abroad to evade trial. The Court declares him a proclaimed offender and, after following due procedure (issuing arrest warrants, publishing notices, etc.), proceeds with the trial in his absence. A State-appointed lawyer defends him, and judgment is pronounced without his presence.

Example 2: A Terrorist Absconding After Charges

A person charged with a terrorist offense disappears before trial. Despite police efforts, he remains untraceable. The Court follows the procedure under Section 356 BNSS, conducts the trial in absentia, and pronounces judgment.

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Common Questions and Answers on Section 356 BNSS

1. Can the trial start immediately if the accused is absconding?

No. The trial cannot start until 90 days after framing of charges, ensuring adequate opportunity for the accused to appear.

2. What if the accused later appears or is arrested?

• If he appears during the trial, he may be allowed to cross-examine witnesses.
• If he appears after conviction, he cannot appeal unless he presents himself before the appellate court.

3. What if the absconding accused is never caught?

The judgment remains valid, and law enforcement can execute the sentence whenever he is arrested in the future.

4. Can an absconder appeal against conviction without appearing?

No. No appeal is allowed unless the absconding accused personally presents himself before the appellate court.

5. What is the significance of video-recording the trial?

• It ensures transparency and prevents misuse of absentia trials.
• It allows future review if the accused is later arrested and requests reconsideration.

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Conclusion

Section 356 BNSS ensures that absconding accused cannot escape justice by evading arrest. The provision balances fair trial rights with judicial efficiency, ensuring that serious cases do not remain pending indefinitely.

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