Trial in Absentia under BNSS | Section 356, Procedure & Significance

Why in News?

Recently, a special NIA court in Jammu has approved the process of conducting trial in absentia against banned terrorist organisation Lashkar-e-Taiba (LeT) chief Hafiz Saeed in the Pahalgam terror attack case.

Background of the Case:

• • • The NIA has filed a Supplementary Chargesheet, naming Hafiz Saeed both in his individual capacity and as the chief of Lashkar-e-Taiba (LeT) and its proxy organisation, The Resistance Front (TRF).
    • Hafiz Saeed is currently hiding in Pakistan and it is not possible to bring him to India immediately. With the issuance of this non-bailable warrant, the way is now clear for Hafiz Saeed to be declared a proclaimed offender or a fugitive.
    • He has been charged under the following laws:
      • Bharatiya Nyaya Sanhita (BNS), 2023
      • Unlawful Activities (Prevention) Act, 1967 (UAPA)
      • Provisions related to waging war against India and cross-border criminal conspiracy.
    • Since Saeed is unlikely to appear before an Indian court, the National Investigation Agency (NIA) is expected to seek a trial in absentia under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

What is Trial in Absentia?

• • • A trial in absentia refers to a criminal trial where judicial proceedings are conducted without the physical presence of the accused.
    • According to Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, if a person has been declared a Proclaimed Offender, has absconded to evade trial, and there is no immediate possibility of his arrest, the court may proceed with the inquiry, trial, and pronouncement of judgment in his absence after recording written reasons.
    • In such cases, the absence of the accused is treated as a waiver of the right to remain present during the proceedings.

Who Does This Provision Apply To?

• • • This provision applies only to persons declared as Proclaimed Offenders under Section 84 of the BNSS.
    • It is further restricted to serious offences that carry punishment of:
      • Imprisonment of 10 years or more
      • Life imprisonment
      • Death penalty
    • This ensures that the provision is used only in cases involving serious criminal offences.

Procedural Safeguards:

• • • Section 356 provides several safeguards to protect the right to a fair trial, including:
    • Two arrest warrants must be issued with an interval of at least 30 days between them.
    • A notice must be published in newspapers informing the accused to appear before the court.
    • The notice must be displayed at the accused’s last known residential address.
    • A relative or friend of the accused must also be informed.
    • The trial can begin only after 90 days from the date of framing of charges.
    • If the accused does not have legal representation, the court must appoint a State-funded Defence Counsel.
    • Statements of witnesses may be recorded through audio-visual means and preserved for future review.

Significance

• • • It helps prevent judicial delays caused by absconding accused persons.
    • It strengthens India's legal response against cross-border terrorism.
    • It improves judicial efficiency by allowing cases to proceed despite the absence of fugitives.
    • It creates a balance between national security concerns and the principles of a fair judicial process.
    • The Hafiz Saeed case is considered one of the first major tests of this new legal provision introduced under the BNSS.