Section 356 BNSS: Inquiry, trial or judgment in absentia of proclaimed offender (New BNSS Provision - Trial in absentia of proclaimed offender)

Section 356 of Bharatiya Nagarik Suraksha Sanhita, 2023: Inquiry, trial or judgment in absentia of proclaimed offender

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Charge Sec 2(1)(b) Inquiry Sec 2(1)(g)

Legal Commentary & Landmark Judgments: Section 356

Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 introduces a historic procedural mechanism for the inquiry, trial, and judgment in absentia of proclaimed offenders.

Inquiry & Trial Mechanism: Section 356 introduces a transformative, landmark procedure in Indian criminal jurisprudence: when a person declared as a proclaimed offender under Section 84 has absconded to evade trial, and there is no immediate prospect of arresting them, the Court may, after ninety days from the date of proclamation, proceed with the trial in absentia.
Framing & Alteration of Charges: The Court shall frame charges, record evidence, hear arguments, and pronounce judgment of conviction or acquittal as if the accused were present.

The accused must be represented by a state-appointed defense pleader, and proceedings must be recorded via audio-video electronic means.

Key Landmark Precedents:

Hussainara Khatoon v. Home Secretary, State of Bihar (1980) 1 SCC 81: The Supreme Court recognized that while physical presence is normally required for fair trial, chronic evasion by fugitives threatens societal justice; trials in absentia must ensure state-appointed legal representation to pass constitutional muster.
State of Punjab v. Baldev Singh (1999) 6 SCC 172: Affirmed that procedural innovations balancing individual rights with the necessity of concluding trials against organized fugitives fall within legislative competence.

Legal Commentary:

Section 356 is a landmark innovation in the BNSS designed to deter economic fugitives, organized criminals, and terrorists from stalling criminal justice by fleeing jurisdiction. Defense counsel appointed under Section 356 must rigorously test prosecution evidence, preserving all appellate remedies should the offender later be apprehended or surrender.