Criminal trials are plagued by the withdrawals of accused at different stages of investigation, inquiry and trial thereby causing delay in the adjudicatory process and may, at times, ultimately lead to scuttle the trial itself. There is almost a pattern and persistence in the manner in which the accused abscond either at the time of investigation or at the time of trial after being granted bail. This problem of outlawry continues even at the appellate stage.
Before, we enter into an in-depth analysis of this problem and its plausible solutions, it is desirable to refer to some of the observations made by the Supreme Court in this regard.
In Surya Baksh Singh v. State of U.P.[1] , the Court observed:
“There is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter wilfully to become untraceable or unresponsive. The criminal justice delivery system is being held to ransom by convicts who have developed the devious and dishonest practice of escaping punishment or sentence by filing appeals, obtaining bail or suspension of sentence and thereafter disappearing beyond the reach of the arms of the law. Given the woeful success rate of the prosecution, if even the relatively niggard number of convicts is permitted to circumvent their sentences, crime is certain to envelop society.”
In Hussain v. Union of India[2], the Court not only pointed out the predicament related to the absconding accused and its adverse effects on a trial but also suggested a possible way out for the problem as follows :
“23. Another suggestion which cropped up during the hearing of the present case relates to remedying the situation of delay in trials on account of absconding of one or the other accused during the trial. In this regard our attention has been drawn to an amendment in the Code of Criminal Procedure, 1898 of Bangladesh by way of adding Section 339-B to the following effect:
“339-B. Trial in absentia.– (1) Where after the compliance with the requirements of Section 87 and Section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order published in at least two national daily Bengali newspapers having wide circulation, direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence.
(2) Where in a case after the production or appearance of an accused before the Court or his release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub-section (1) shall not apply and the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.”
(emphasis added)
The issue discussed in Hussain[3] was again reiterated by the Supreme Court in Bachche Lal Yadav v. Akhand Pratap Singh[4]. Several Reports of the Law Commission of India, such as the 177th[5] and the 239th[6] Law Commission Reports, have echoed the concerns of absconding accused and have regarded it as one o the biggest impediments in the speedy trial, in particular, and the criminal justice system, in general. As aptly noted by the Supreme Court in Surya Baksh Singh case[7] , there is a concerted effort to delay the adjudicatory process by the accused persons. More recently, the dilatory tactics adopted in Nirbhaya case[8] even after the final disposal of the appeals by the Supreme Court and of the mercy petitions by the President of India reflects and confirms the trend. In any case, these are not isolated instances and even a cursory review of the major contested cases disposed of by different High Courts involving multiple accused shall invariably show some of the accused absconding at different stages of the criminal proceeding.[9] It is against this backdrop that the problem calls for a closer scrutiny.
It is one of the founding cannons of the criminal justice system that an accused is entitled to fair trial in which he has a right of being present during the criminal trial so that he is aware of the charges levelled against him to enable him to put up his defence. It is with this object that the Criminal Procedure Code makes elaborate provisions at different stages of inquiry and trial for giving the accused an opportunity of being heard. The accused gets the opportunity of being heard at the stage of framing of charges/substance of acquisition being explained, at the time of recording of evidence, at the stage of Section 313 CrPC, before conclusion of the trial at the stage of argument and in case of convictions before the sentence is pronounced.
The scheme of CrPC enshrines salutary provisions so that the accused is not condemned behind his back. However, the right of being heard, like any other right, is not an absolute right and is subject to exceptions under Sections 205, 291, 292, 293 and 317 CrPC. For other exceptions, reference may be made to the provisions of Sections 32 and 33 of the Evidence Act and Section 17 of the Extradition Act. Section 299 of the CrPC can also be termed as one of the exceptions and whenever the accused absconds, the evidence can be recorded in his absence and can be used against him in the circumstances laid down in this section. These rights as stated earlier are not absolute and they have not been accepted as a fundamental right in Jayendra Vishnu Thakur v. State of Maharastra[10]. The Court observed,
“We may, however, notice that such a right has not yet been accepted as a fundamental right within the meaning of Article 21 of the Constitution of India by the Indian courts. In absence of such an express provision in our constitution, we have to proceed on a premise that such a right is only a statutory one.”
In the words of Oliver Wandel Holmes, the life of law is not logic but experience. Aharon Barak, in his bookJudge in a Democracy, adds “the life of law is not just logic or experience. The life of law is a renewal based on experience and logic caused by change in society”.
Like any other field, experience teaches us that there is often a wide gap between idealism and reality and it has become incumbent to bridge this gap and strike a balance to actualise the ideals in its execution. This is so because law and justice is not about only the high ideals as avowed in an enactment, but the way it really works out in achieving the ideals of speedy justice which has been accepted as a fundamental right of the citizen. Procedural laws are not an end in themselves, but are means to an end to achieve justice. There can be no two views that the criminal justice dispensation suffers from inordinate delays, low conviction rates and uncertainty about its final outcome. Inordinate delays not only cause hardship to the parties, loss of critical evidence and compelling the informant/victim to succumb midway, but they also result in the loss of public confidence in the criminal justice system. A close examination of the delays can reveal a pattern of blatant misuse of the provisions by the accused persons to delay and scuttle criminal trials.
Our experience in Jharkhand is that in a very large number of cases the accused persons abscond at different stages resulting in the cases being delayed for want of appearance of the accused. In cases of multiple accused, when one or more accused abscond their case is split up from those in attendance before the court leading to multiplicity of cases arising from the same incidence. One criminal case leads to offshoot of different split up records in which the trial is to be conducted all over again with the arrest of the absconding accused.
Once the accused does not appear, the process is issued against the non-appearing accused and if it is proved that the accused has absconded, and that there is no immediate prospect of his arrest, the court may draw a proceeding under Section 299 CrPC to record the evidence of the witnesses in absentia of the accused. The evidence so recorded does not finally dispose of the cases against the absconding accused, but are kept on record till the arrest or surrender of the absconding accused irrespective of the fact whether the accused is arrested after a long gap or is not arrested at all. Even after the appearance of the absconding accused is secured, the evidence recorded cannot be used unless and until the witness has died or his appearance cannot be secured without undue delay. The net result is that once the accused absconds, the criminal proceeding goes in limbo and criminal trial cannot crawl forward, the charge cannot be framed, evidence cannot be recorded, statement under Section 313 CrPC cannot be recorded, defence evidence cannot be recorded and judgment cannot be delivered. The entire process of criminal adjudication goes in hibernation till the arrest of the accused. This is how offenders of serious offences, be it million dollars financial fraud cases, murder cases and sexual assault cases, the accused is able to evade adjudication and the entire adjudicatory process precariously remains poised at the will of the accused to appear before the court.
The main question that confronts us is the rationale behind the stay of the trial till the apprehension of a wilfully absconding accused. It is quite understandable that the accused should be given a proper notice regarding the pendency of charge against him in a court of law, but the pertinent question is whether it is justifiable to put on hold the proceedings of the case till the appearance or arrest of the accused, even in cases where after a reasonable notice, the accused avoids appearance before the court. It will be gainful to review law and practice which is prevailing in other countries. The right of the accused to be present and be heard during criminal trial, which is the most important facet of fair trial, is not absolute and is subject to the condition that the accused is required to co-operate during investigation, inquiry and trial. It cannot be made a pretext to abscond, delay and ultimately frustrate the criminal adjudication.
Some of the leading cases in UK, Australia and Canada mentioned below will show that in case the accused absconds deliberately, the trial proceeds in absentia and even judgment and sentence are also pronounced against such absconding accused.
In R v. Jones (Robert)(No. 2)[11] as has been reported in the Halsbury’s Law of England, “if the accused during the trial absents himself from court voluntarily, however, as, for example, by escaping from custody or failing to surrender to custody whilst on bail, the Judge, in his discretion may allow the trial to continue; and, if the accused is convicted, the Judge may sentence him in his absence.”[12]
In R v. Jones (Anthony),[13] the House of Lords dealt with the question, ‘Can the Crown Court conduct a trial in the absence, from its commencement, of the defendant?’
The facts of this case which can be culled out from the judgment are as follows: Mr. Jones allegedly robbed a post office in Liverpool and stole 87,000 pounds on 18 August, 1997. Mr. Jones and his co-accused were arrested, charged for the offence and granted bail. Both the defendants pleaded not guilty, therefore, a trial date was fixed for 1sst June, 1998. However, warrants were issued for their arrest as both the defendants did not surrender themselves before the Crown Court for the trial. No arrest could be made, neither there was any surrender on the part of the defendants and the trial date continued to be relisted.
The Court transcripts as mentioned in the House of Lords’ judgment showed the initial reluctance of the Judge to proceed with the trial in those circumstances. However, when it was pressed before him that “further delay would be very unfair to a large body of witnesses, some of whom had undergone a very traumatic experience, and after reference to the decided cases” it was ruled that the trial should begin after considering that the defendants had “deliberately frustrated the attempt of the prosecuting authorities to have the case finally concluded”. Both were convicted of conspiracy to rob and sentenced to 13 years’ imprisonment. An appeal was preferred against the conviction which was dismissed.
In the opinion rendered by Lord Bingham it has been observed that, ‘if a criminal defendant of full age and sound mind, with full knowledge of a forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have the automatic effect of suspending the criminal proceedings against him until such time, if ever, as he chooses to surrender himself or is apprehended’. Further, in para 12 of the judgment he stressed:
[…] it is only necessary to consider the hypothesis of a multi-defendant prosecution in which the return of a just verdict in relation to any and all defendants is dependent on their being jointly indicted and tried. On the eve of the commencement of the trial, one defendant absconds. If the court has no discretion to begin the trial against that defendant in his absence, it faces an acute dilemma: either the whole trial must be delayed until the absent defendant is apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced against the defendants who appear and not the defendant who has absconded. This may confer a wholly unjustified advantage on that defendant. Happily, cases of this kind are very rare. But a system of criminal justice should not be open to manipulation in such a way.
In R v. Jones (Robert) (No. 2)[14], the House of Lords laid down the principles which should guide the courts in relation to the trial of the defendant in his absence. Some of those factors as enlisted in Point 5 of the Appendix attached with the judgment are being reproduced for ready reference:
- The nature and circumstances of the defendant’s behaviour in absenting himself from the trial or disrupting it, as the case may be, and in particular, whether his behaviour was deliberate, voluntary and such as plainly waived his right to appear;
- Whether an adjournment might result in the defendant being caught or attending voluntarily and/or not disrupting the proceedings;
- The likely length of such an adjournment;
- Whether the defendant, though absent, is, or wishes to be, legally represented at the trial or has, by his conduct, waived his right to representation;
- Whether an absent defendant’s legal representatives are able to receive instructions from him during the trial and the extent to which they are able to represent his defence;
- The extent of the disadvantage to the defendant in not being able to give his account of events, having regard to the nature of the evidence against him;
- The risk of the jury reaching an improper conclusion about the absence of the defendant;
- The seriousness of the offence, which affects defendant, victim and public;
- The general public interest and the particular interest of victims and witnesses that a trial should take place within a reasonable time of the events to which it relates;
- The effect of delay on the memories of witnesses;
- Where there is more than one defendant and not all have absconded, the undesirability of separate trials, and the prospects of a fair trial for the defendants who are present.
In Australia, it was in R v. McHardie and Danielson[15] that the Court of Criminal Appeal in New South Wales recognised that a court might proceed with an accused’s trial even in the case of a felony where the accused was absent. In that case the accused had escaped from lawful custody during the course of the trial. The Court said, “We accordingly find, in the ultimate, that on the weight of judicial authority absconding on bail during a trial amounts to a waiver by the accused to his right to be present at trial….We hold that the trial Judge had the discretion to continue the trial in the absence of the accused.”
This case was referred to and followed by the South Australian Court of Criminal Appeal in R v. Jones[16] wherein Lander, J. stated the relevant principles as follows:
“In my opinion a Court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person during the currency of the trial, for example, escapes from custody, or where the accused person unlawfully absents himself or herself in breach of a bail agreement, or where, without any good excuse or explanation, the person absents himself or herself from the proceedings. In any of those cases if the Court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused’s own waiver, then the Court may proceed with the accused’s trial. Any discretion to proceed in the absence of the accused however should be exercised sparingly.”
As a general principle in Canada the accused has to be present during the trial. However, it is relevant to note Section 544 of the Canadian Criminal Procedure[17] which provides for the procedure to be followed in cases where accused is absconding during inquiry.
In the United States, Rule 43 of the Federal Rules of Criminal Procedure talks about the defendant’s presence: when required, when not required and waiving the continued presence.[18]
In Taylor v. US,[19] the Supreme Court of the United States rejected the petitioner’s claim that mere voluntary absence from his trial cannot be construed as an effective waiver, unless it could be shown that he had knowledge or had been warned in express terms by the trial court about his right to be present at the trial but also that in his absence the trial would continue.
From the above discussion, it is crystal clear that criminal jurisprudence world over does not accord the accused persons an unfettered and absolute right to derail a criminal trial by absconding from it. In case of wilful absconders, the trial proceeds and sentence is pronounced in the absence of the absconding accused.
In India, Section 299 CrPC is the only provision which addresses the issue, but in its present form it is ineffectual, because as stated earlier, it does not conclude the trial but merely records the evidence in the absence of an accused which cannot even be used after the arrest or appearance of the accused unless the conditions specified thereunder is present. Criminal adjudication hangs in uncertainty and with every passing month and year the prospect of justice becomes even more distant and dim. After a long lapse of time, vital evidence is lost, and the victim is too demoralised to appear before the Court to state the truth. In case of multiple accused, the agonies of the victim are further multiplied by being forced to depose in one case multiple times after the successive arrest of the accused persons. The situation can be well imagined in gang rape cases where the prosecutrix can be subjected to the trauma of repeated cross-examinations after the arrest of different accused persons. Section 33(5) of the POCSO Act, 2012 mandates that the Special Court shall ensure that the child is not called repeatedly to testify in the court. This provision does not answer as to how the child can be saved from the agonies of repeated testimony, in cases of gang rapes where multiple trials take place against the accused who abscond and are apprehended after the trial commences against one or more accused.
We have been witness to high stake, multi-million financial fraud cases where the accused persons, having swindled huge public money, have absconded abroad and the trial has not commenced for want of appearance of the accused. Why should the law look askance and permit such dilatory tactics of the outlaws? The cases that hit the headlines are not the only ones, but our research revealed that they represented only the tip of the proverbial iceberg and there are plenty of such cases where the trial of criminal cases suffer due to absconding of the accused.
The menace of absconding of accused, the magnitude of its problem and its implication on criminal adjudication came in sharp notice of the High Court of Jharkhand in its order dated 14th September, 2018 in Hari Singh v. State of Jharkhand[20] in which it was inter alia observed that “The Home Secretary, Government of Jharkhand is also expected to place this fact before the Government so that there may be some State amendment under Section 299 CrPC.” In this case, it was noted by the Court that while appeal of some of the convicts was being heard by the Court, one of the accused who was declared an absconder was yet to be arrested. Consequently, directions were issued in this appeal to the Director-General of Police to apprise the Court regarding the status of absconders register (Form 16 of the Police Manual) of the entire State.
In yet another criminal appeal, Gorkha Gope v. State of Jharkhand[21], the Division Bench of the Jharkhand High Court noted that the appeal was pending against some of the accused, whereas two accused persons had never submitted to the jurisdiction of the criminal justice system. This case involved Sections 302, 201, 307, 120-B and 34 IPC for which the FIR was instituted on 7th November, 2006. In this case, reference was made to three other similar criminal appeals where some of the accused were still at large, whereas the trial had culminated in case of the others. In this case, the DGP, Jharkhand filed an affidavit stating, inter alia, that pursuant to directions in Hari Singh v. State of Jharkhand[22], special drive for arresting absconders was undertaken and out of total 31,481 absconders verified till 31.3.2019, 17,669 absconders were either arrested or had surrendered or were declared dead as on 16.2.2019.
Proposed Amendments
Section 299 sub-section (1) of the Criminal Procedure Code in its present form needs to be amended as the evidence recorded under this section cannot be used against the accused unless the witness cannot be found or is dead, etc. This, however, creates multiplicity of trials as there is one proceeding for those accused who are in custody and then there is recording of evidences against those who have been declared as an absconder in another. Thus, Section 299 sub-section (1) needs to be substituted with the following:
- Inquiry and Trial in absence of accused.–
(1) Notwithstanding anything contained in the Code, if it is proved that an accused person has absconded, and there is no immediate prospect of arresting him, the trial of the case shall proceed in absentia in the court of competent jurisdiction for the offence complained of and the court shall not be bound to recall or rehear any witness, whose evidence has already been recorded, or to re-open proceedings already held, but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached and pronounce judgment at the conclusion of the trial:
Provided that the Court may assign a pleader for the defence of the absconding accused at the expense of the State.
Explanation: The trial in absentia shall include framing of charges or explaining the substance of accusation as the case may be, against the absconding accused.
For the second category of absconders who misuse the bail, it should be sufficient to serve them the summons as they are already aware of the trial against them. To deal with such cases, the following sub-section should be inserted:
299.(1)A– Notwithstanding anything contained in the Code, where a person accused of an offence and released on bail or on bond without sureties, fails to appear in Court without any sufficient cause in accordance with the terms of the bail or bond, the Court may after service of summon to the accused in the manner as provided under Chapter VI of the CrPC, proceed with the inquiry or trial in his absence and the Court shall not be bound to recall or rehear any witness, whose evidence has already been recorded, or to re-open proceedings already held, but may act on the evidence already produced or recorded and continue the trial from the stage which the case has reached and pronounce judgment at the conclusion of trial.
Once the above amendments are made it will be possible to continue with the criminal proceeding from the stage where the accused is declared a wilful absconder till the conclusion of the trial. The key for proceeding against an accused not in appearance shall be the satisfaction of the court regarding the fact that the accused has wilfully absconded.
There are a disproportionately large number of undertrial prisoners languishing in jail. The main and primary reason why the trial courts are not very liberal in granting bail is the apprehension of the accused absconding trial. One of the several advantages of the proposed amendments is that once there is a provision in place enabling a court to proceed against a wilful absconder the courts will be more forthcoming in granting bail in appropriate cases. The accused being aware of the consequence of his absconding leading to trial in absentia will be less likely to misuse bail and put up his defence during trial instead of absconding from it. Therefore, these amendments will be a significant step forward towards speedy trial in criminal cases which will have many positive advantages both for the victim as well as the accused.
* Director, Judicial Academy Jharkhand
[3] Ibid.
[5] 177th Report of Law Commission of India on Law Relating to Arrest, (December 2001)
[6] 239th Report of Law Commission of India on Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities (March 2012)
[7] Surya Baksh Singh v. State of U.P., (2014) 14 SCC 222
[8] Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1; Vinay Sharma v. State (NCT of Delhi), (2018) 8 SCC 186; Vinay Sharma v. State (NCT of Delhi), 2020 SCC OnLine SC 230; Vinay Sharma v. Union of India, (2020) 4 SCC 391
[9] See generally, State v. Ram Gopal, 2006 SCC OnLine Del 590; Vijay v. State of Maharashtra, 2004 SCC OnLine Bom 119; State of M.P. v. Vishwanath Nidhanji, 1953 SCC OnLine MP 75; Mahendra Bhogilal Tadvi v. State of Gujarat, 2008 SCC OnLine Guj 177; Niraj Devnarayan Shukla v. State of Gujarat, 2015 SCC OnLine Guj 6269.
[11] (1972) 1 WLR 887 (CA) : [1972] 2 All ER 731
[12] Para 945, p. 803, Halsbury’s Law of England, 4th Edn., Reissue 11(2).
[13] (2003) 1 AC 1 : (2002) 2 WLR 524 (HL) : [2002] UKHL 5, [2002] 2 All ER 113
[14](1972) 1 WLR 887 (CA) : (1972) 2 All E R 731
[15](1983) 2 NSWLR 733 (CCA)
[16] 1998 SASC 7021 (Aust)
[17] S. 544(1): Accused absconding during inquiry. — Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of a preliminary inquiry into an offence with which he is charged, (a) he shall be deemed to have waived his right to be present at the inquiry, and (b) the justice –
(i) may continue the inquiry and, when all the evidence has been taken, shall dispose of the inquiry in accordance with Section 548, or
(ii) if a warrant is issued for the arrest of the accused, may adjourn the inquiry to await his appearance, but where the inquiry is adjourned pursuant to subparagraph (b)(ii), the justice may continue it at any time pursuant to sub-paragraph (b)(i) if he is satisfied that it would no longer be in the interests of justice to await the appearance of the accused.
(2) Adverse inference: Where the justice continues a preliminary inquiry pursuant to sub-section (1), he may draw an inference adverse to the accused from the fact that he has absconded.
(3) Accused not entitled to re-opening: Where an accused reappears at a preliminary inquiry that is continuing pursuant to subsection (1), he is not entitled to have any part of the proceedings that was conducted in his absence re-opened unless the justice is satisfied that because of exceptional circumstances it is in the interests of justice to re-open the inquiry.
(emphasis supplied)
[18] Rule 43. Defendant’s Presence. —
- When required ***
- When not required ***
- Waiving Continued Presence.
(1) In General.– A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:
(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;
(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or
(C) when the court warns the defendant that it will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.
(2) Waiver’s Effect. –If the defendant waives the right to be present, the trial may proceed to completion, including the verdict’s return and sentencing, during the defendant’s absence.
[19] 1973 SCC OnLine US SC 224 : 38 LEd 2d 174 : 414 US 17 (1973) : 94 SCt 194
[20] 2018 SCC OnLine Jhar 2534
Excellent research and a probable solution to the practice of absenteeism as the biggest defense. 229A IPC and 174A IPC will be more fruitful now .