What is meant by ‘trial in absentia’?, Pg10

Key Highlights:

• A Special NIA Court in Jammu issued a non-bailable warrant against Hafiz Saeed, chief of the proscribed terror outfit Lashkar-e-Taiba (LeT), in connection with the Pahalgam terror attack.
• The National Investigation Agency (NIA) is expected to seek a trial in absentia against Saeed under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
• Saeed has been charged under provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, and the Unlawful Activities (Prevention) Act (UAPA), 1967.
• The charges include waging war against India and hatching a conspiracy from across the border.

Detailed Insights:

• Trial in absentia refers to a criminal trial conducted in the absence of the accused, a provision now explicitly strengthened under the new Indian criminal laws.
• Section 356 of the BNSS allows courts to proceed with inquiry, trial, and judgment if a proclaimed offender has absconded to evade trial and there is no immediate prospect of arrest.
• This provision applies only to a proclaimed offender accused of serious offenses punishable with imprisonment of 10 years or more, life imprisonment, or death.
• The BNSS replaces the Code of Criminal Procedure (CrPC), which had limited provisions for in-absentia trials, often leading to prolonged pending cases.
• Procedural safeguards under Section 356 include issuing two consecutive arrest warrants, publishing notices in newspapers, and displaying them at the accused’s last known residence.
• The trial cannot commence until 90 days after charges are framed, and a defense lawyer must be appointed at the State’s expense if the absconding accused lacks legal representation.
• Statements of prosecution witnesses recorded before the trial can be used as evidence, with provisions for cross-examination if the accused later appears or is apprehended.
• The deposition and examination of witnesses may be recorded through audiovisual electronic means to ensure transparency and integrity of the trial process.

Key Concepts Involved:

• Trial in absentia: A criminal trial conducted in the absence of the accused, permitted under specific legal conditions.
• Proclaimed Offender: A person declared by a court to have absconded to evade arrest or trial after a proclamation has been issued.
• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: The new law replacing the Code of Criminal Procedure (CrPC), governing criminal procedure in India.
• Bharatiya Nyaya Sanhita (BNS), 2023: The new law replacing the Indian Penal Code (IPC), defining criminal offenses and their punishments.
• Unlawful Activities (Prevention) Act (UAPA), 1967: A primary anti-terrorism law in India, dealing with unlawful activities and terrorist acts.