Trying a Man Who Will Never Appear: Section 356 and the Empty Dock
The BNSS lets Indian courts run a full trial, convict and sentence an absconder — a power the CrPC never had, and one that may complicate the extradition it is meant to support
What happened
Criminal procedure questions usually reward reciting a section. This one rewards holding a tension: the same provision that stops absconding from working as a permanent defence also removes the accused's ability to cross-examine, and may make the extradition it was designed to assist harder rather than easier. Learn the safeguards and the trade-off together — a trial in absentia is a considered exchange of one value for another, not a straightforward gain.
The 150-Day Gate Before an Empty-Dock Trial
Section 356, BNSS — Procedural Sequence
| CrPC, 1973 | BNSS, 2023 | |
|---|---|---|
| Proclaim absconder | Yes (S.82) | Yes |
| Record evidence in absence | Yes (S.299) | Yes |
| Convict & sentence | No | Yes (S.356) |
Source: Bharatiya Nagarik Suraksha Sanhita, 2023; Code of Criminal Procedure, 1973
Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 — which replaced the Code of Criminal Procedure, 1973 — permits trial in absentia of a proclaimed offender who is intentionally evading justice.
●The CrPC contained related but weaker tools: Section 82 provided for proclamation of an absconding person and Section 299 allowed evidence to be recorded in the accused's absence, but neither permitted a trial to be carried through to judgment and sentence.
●Section 356 does.
●Threshold: the provision applies to offences punishable with imprisonment of ten years or more, imprisonment for life, or death.
●Safeguards: the court must issue two consecutive warrants of arrest at least thirty days apart; publish a notice in a local or national newspaper requiring the accused to appear within thirty days; and observe a ninety-day period before the trial commences.
●The accused is represented by counsel, including state-appointed counsel where none is engaged.
●Related instruments include the Fugitive Economic Offenders Act, 2018, which allows confiscation of a fugitive's property but does not permit trial, and Interpol Red Notices for locating absconders.
●In the present matter, the Special NIA Court in Jammu issued a non-bailable warrant against Hafiz Saeed after the NIA's supplementary chargesheet of 6 July 2026 in the Pahalgam attack case.
The CrPC could record evidence against an absconder; the BNSS can convict one. That is the change — and it converts absconding from a permanent shield into a delaying tactic.
◎ In Simple Words
Normally, a criminal trial in India cannot finish unless the accused person is present in court. That means someone who runs away and stays abroad can never be convicted, no matter how strong the evidence. A new law changes this: if a person has been formally declared an absconder and the crime is serious enough, a court can now hold the whole trial, decide guilt and pass a sentence even though the accused never appears. The court must first try hard to bring them in — two arrest warrants a month apart and a newspaper notice — and then wait three months before starting.
Factual Pointers
Practice · 2 questions
With reference to trial in absentia under the Bharatiya Nagarik Suraksha Sanhita, 2023, consider the following statements:
1. It may be invoked against a proclaimed offender who is intentionally evading justice.
2. It applies only to offences punishable with imprisonment of ten years or more, life imprisonment or death.
3. The court may deliver a judgment and pass a sentence in the absence of the accused.
Which of the statements given above are correct?
Which of the following procedural requirements must be satisfied before a trial in absentia may commence under the BNSS, 2023?
1. Issue of two consecutive warrants of arrest at least thirty days apart
2. Publication of a notice requiring the accused to appear within thirty days
3. A waiting period of ninety days before the trial begins
Select the correct answer using the code given below:
Mains Practice Questions
"Trial in absentia converts absconding from a shield into a delay, but it cannot convert counsel into a client." Critically examine Section 356 of the BNSS, 2023 against the fair trial guarantee under Article 21. (250 words, GS2)
A conviction in absentia may make extradition harder rather than easier. Examine this proposition and its implications for India's prosecution strategy against fugitives. (250 words, GS2)
Compare the treatment of absconding accused under the CrPC, 1973 and the BNSS, 2023. (150 words, GS2)
Frequently Asked
· People also askWhat is trial in absentia under the BNSS?
Section 356 of the Bharatiya Nagarik Suraksha Sanhita, 2023 allows a court to conduct a full trial against a proclaimed offender who is intentionally evading justice, and to deliver a judgment and pass a sentence in that person's absence. The CrPC, 1973 had no such power.
Prelims · GS2It applies only to offences punishable with imprisonment of ten years or more, life imprisonment or death — confining the power to the gravest categories of offence.
SOURCE Bharatiya Nagarik Suraksha Sanhita, 2023
What safeguards must be satisfied first?
Three cumulative conditions: two consecutive warrants of arrest issued at least thirty days apart; publication of a notice in a local or national newspaper giving the accused thirty days to appear; and a ninety-day waiting period before the trial commences. Counsel represents the accused, including state-appointed counsel.
GS2 · PolityThese establish that the absence is deliberate rather than accidental — which is the constitutional premise for proceeding without the accused at all.
SOURCE BNSS, 2023, Section 356
Why was a warrant issued against Hafiz Saeed?
The Special NIA Court in Jammu issued a non-bailable warrant against the Lashkar-e-Taiba chief after the National Investigation Agency filed a supplementary chargesheet on 6 July 2026 naming him a key conspirator in the Pahalgam attack, in which 26 people were killed.
GS3 · Internal SecuritySince he will not appear before an Indian court, the agency is expected to invoke Section 356 to proceed with a trial in his absence.
SOURCE The Week; National Investigation Agency
How did the CrPC treat absconding accused?
It allowed proclamation of an absconding person under Section 82 and recording of evidence in the accused's absence under Section 299, but never permitted a trial to be carried through to conviction. An accused beyond reach therefore could not be convicted however complete the evidence.
GS2 · PolityThis meant absconding functioned as a permanent defence, giving the most resourceful offenders — those able to leave the country and stay away — the strongest protection.
SOURCE Code of Criminal Procedure, 1973
Does trial in absentia violate the right to a fair trial?
It is in tension with it. Counsel can be appointed and can cross-examine, but cannot take instructions from an absent client or produce a defence only the accused knows exists. Article 21 requires effective defence, not merely formal representation.
GS2 · PolityThe provision's constitutional durability will therefore turn on whether a convicted absconder who later appears has a genuine right to have the conviction reopened, rather than only an appeal on the existing record.
SOURCE Constitution of India, Article 21
Could a conviction in absentia make extradition harder?
Yes — that is the practical irony. Several jurisdictions decline to extradite persons convicted in their absence unless the requesting state guarantees a full retrial, on the view that surrendering someone to serve a sentence imposed without a hearing offends due process.
GS2 · IRIndia may therefore find that trying a fugitive complicates securing custody, making the sequencing of prosecution and extradition request a strategic choice rather than a procedural formality.
SOURCE Comparative extradition practice