Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023: Trial in Absentia of Proclaimed Offenders – A New Era in Criminal Justice
By Advocate Avichal Pandey
Advocate, Allahabad High Court
The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced several landmark procedural reforms to modernize India's criminal justice system. One of the most debated provisions is Section 356, which empowers criminal courts to conduct a trial in absentia against proclaimed offenders who deliberately evade the judicial process.
This provision marks a significant shift from the traditional principle that an accused should ordinarily be present during his trial. While the objective is to prevent abuse of the legal system by absconding accused persons, the provision has also generated serious constitutional and legal debates regarding the right to a fair trial.
What is Trial in Absentia?
A trial in absentia refers to a criminal trial conducted without the physical presence of the accused. Under Indian criminal jurisprudence, the presence of the accused has traditionally been considered an essential safeguard to ensure fairness and compliance with the principles of natural justice.
However, Section 356 BNSS creates a limited exception where an accused, after being declared a proclaimed offender, intentionally avoids arrest and refuses to participate in the judicial process.
Objective Behind Section 356 BNSS
The legislature introduced this provision to address a recurring problem in criminal prosecutions—accused persons absconding for years, resulting in delayed trials and denial of justice to victims.
The primary objectives include:-
●Preventing deliberate evasion of criminal proceedings.
●Reducing the backlog of pending criminal cases.
●Ensuring timely justice for victims.
●Discouraging misuse of procedural safeguards by habitual offenders.
When Can a Court Conduct a Trial in Absentia?
Section 356 does not permit automatic trial in every case where an accused is absent. Before invoking this extraordinary power, the Court must satisfy itself that:-
●The accused has been declared a proclaimed offender in accordance with law.
●The accused has deliberately absconded to avoid the criminal trial.
●There is no immediate possibility of securing his arrest.
●The Court records detailed reasons in writing before proceeding further.
This judicial satisfaction acts as an important safeguard against arbitrary exercise of power.
Procedural Safeguards Under Section 356
Recognising the seriousness of conducting a criminal trial without the accused, the BNSS incorporates several mandatory safeguards.
1. Adequate Waiting Period
The Court cannot immediately commence the trial after the accused is declared a proclaimed offender. Sufficient time must be provided to enable the accused to surrender before the proceedings continue.
2. Repeated Attempts to Secure Presence
Before invoking Section 356, investigating agencies are expected to make genuine efforts to execute warrants and secure the accused's appearance.
3. Public Notice
The law requires publication of notices through newspapers and other prescribed modes so that the accused receives reasonable information regarding the pending proceedings.
4. Local Publication
Information regarding the proclamation may also be affixed at the accused's residence and other notified places to maximise the possibility of service.
5. Legal Representation
Even if the accused remains absent, the Court must ensure that legal representation is available. Where necessary, a legal aid counsel may be appointed to protect the interests of the accused and maintain fairness during the trial.
6. Audio-Video Recording of Evidence
Witness depositions may be audio-video recorded, preserving the testimony and enhancing transparency during the proceedings.
Appeal Against Conviction
Section 356 also places certain restrictions regarding appeals. An accused convicted after a trial in absentia may not be entitled to invoke appellate remedies unless he first appears before the appellate court, subject to the provisions of law. This requirement discourages prolonged evasion of the judicial process while maintaining the integrity of criminal adjudication.
Constitutional Concerns
Section 356 has become the subject of considerable legal debate. Critics argue that conducting a criminal trial in the absence of the accused may affect the constitutional guarantee of a fair trial under Article 21 of the Constitution of India.
Some of the principal concerns include:-
●Limitation on the accused's opportunity to effectively defend himself.
●Inability to personally cross-examine witnesses.
●Possible infringement of the principles of natural justice.
●Risk of conviction without meaningful participation of the accused.
Supporters of the provision, however, contend that constitutional protections cannot become a shield for individuals who intentionally evade the legal process for years.
Judicial Interpretation
As Section 356 is a recent legislative innovation under the BNSS, Indian courts are expected to gradually develop judicial principles governing its application. Future decisions of the Supreme Court and various High Courts will play a crucial role in defining:-
●The scope of "deliberate absconding."
●The extent of procedural compliance required before invoking the provision.
●The balance between victims' rights and the accused's constitutional protections.
Practical Implications for Criminal Litigation
For defence lawyers, Section 356 underscores the importance of advising clients not to evade judicial proceedings. Absconding may now result in the continuation of the trial without their participation, potentially leading to conviction.
For prosecutors and investigating agencies, the provision imposes a responsibility to strictly comply with statutory safeguards before requesting the Court to proceed in absentia.
For trial courts, Section 356 demands cautious and reasoned exercise of judicial discretion, ensuring that procedural fairness is never compromised.
Conclusion
Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 represents one of the most significant procedural reforms in Indian criminal law. It reflects the legislature's intention to ensure that justice is not indefinitely delayed because an accused chooses to remain absconding.
At the same time, the provision must be applied with utmost caution. Criminal trials are founded on fairness, transparency, and respect for constitutional rights. Courts must therefore ensure strict compliance with every procedural safeguard before invoking this exceptional mechanism.
As constitutional challenges and judicial interpretations evolve, Section 356 is likely to become one of the most closely examined provisions of the BNSS, shaping the future of criminal procedure in India.
Avichal Pandey
Advocate
Allahabad High Court.
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