Echoing a view similar to that of the Supreme Court in Hussain v. Union of India1, the Calcutta High Court in Kader Khan v. State of W.B.2 has proposed an amendment to the Code of Criminal Procedure, 19733 (hereinafter referred to as “the Code”) to provide for trial in absentia of absconding accused to further speedy justice, in light of the emergence of victim rights and in particular the victims of sexual abuse.4 The Court observed that the present laws do not address situations where the accused waives his right of a fair trial by abscondence which subjects the victims to secondary victimisation.5
One of the immutable principles of justice is that the accused be present at his trial for the meaningful exercise of his right to defence.6 Such a right has been recognised by the European Court of Human Rights to be a part of the right to a fair trial.7 Further, the International Covenant on Civil and Political Rights (ICCPR) declares that the accused has a right to be tried in his presence.8 However, it is interesting to explore the nuances of this right where the accused absconds, and the entire criminal justice system comes to a standstill. Would it be right to let such an accused take the system for ransom by withdrawing himself from the criminal proceedings and rendering the case infructuous? Such a breach of duty on the accused’s part does call for an alternative procedure so that the ends of justice are not defeated by the conduct of the accused. The conflict between those favouring a stricter criminal procedure and liberal criminal procedure is whether to allow “necessity” to sacrifice the principles integral to the criminal justice system or to let mere technicalities render the system helpless.9
Although the Code does provide for a situation where the evidence may be recorded in the absence of the accused, it lacks a provision on trial in absentia. Section 27310 of the Code while stipulating the fundamental postulate of a fair trial also provides for an exception for the same. It makes it imperative for the evidence to be taken in the presence of the accused unless such personal attendance of the accused is dispensed with. Further, Section 29911 of the Code enables the Court to record the evidence of the prosecution witness where the accused absconds. Although it is an enabling provision, it does not resolve the issue of trial in the event of an “absentee accused”. It partially attempts to provide a solution in the form of evidence in absentia albeit with limitations. Firstly, there is no mandate to record the evidence when an accused absconds and is subject to the discretion of the Magistrate or the Court;12 secondly, the evidence so recorded in the absence of the accused can only be used in limited scenarios13 which further restricts the section thereby, leaving a vacuum regarding the trial of an absconder.
Another situation contemplated by the Code, where the absence of the accused does not result in the arrest of the proceedings, is that provided under Section 317.14 The courts have the power to dispense with the presence of a disruptive accused15 but do not have the same power in the case of an absconder accused. Under this provision, the court may under two conditions dispense with the personal attendance of the accused first, if it is satisfied that in the interests of justice it is not necessary and second, where the accused “persistently” disturbs the court proceedings.16 It may be observed here that in the second condition the “conduct” of the accused becomes a factor.
Be it for the prevention of secondary victimisation or for ensuring an efficient trial by recording the fresh account by the witnesses or saving the resources and energy of the State as well as the judicial system, the curiosity for trial in absentia is gaining momentum. One can witness judicial intrigue in recent times with the Supreme Court passing directions in this regard. In Bachche Lal Yadav v. Akhand Pratap Singh17 the issue of the trial being pending since 2013 as the accused was absconding from the law for several years, came to light. The Supreme Court passed numerous orders directing the State to secure the presence of the accused and produce him before the trial court for the trial to proceed further. During the proceedings, a reply was sought from the Union of India regarding the status of the suggestion of the Supreme Court in Hussain v. Union of India18 wherein, the authority concerned was asked to consider Section 339-B of the Code of Criminal Procedure, 1898 of Bangladesh as a remedy to the issue of prolonged delay in trials where the accused absconds.19
If the recommendation of the Supreme Court is accepted by the legislature, while introducing a provision for trial in absentia the draftsmen are required to take into account the three indispensable conditions that constitute such trial, which are:
Waiver by the accused.
Discharge of duties by the State.
Legal representation for procedural fairness at trial.
Waiver by the accused
The criminal justice system is designed in a way to secure a fair trial and to meet the ends of justice. Nonetheless, the criminal trial procedure cannot be static and inevitably must match the pace of the changing interests. In order to remove any hindrance to administration of justice, doctrine of waiver and theory of public interest20 seem to gain populace by actively advocating for trial in absentia. It is based on the idea that though the right to be tried in the accused’s presence is a negative right; it does not amount to infringement if the legal system tries the accused in his absence due to his conduct.21 In other words, by the act of abscondence, the accused waives his right to be tried in his presence.22
Let us try to comprehend the notion of waiver which is quintessentially built upon “knowledge” as it presupposes informed consent.23 In the absence of knowledge, it cannot be said that the accused exercised his free will and as a consequence of the same a waiver would not amount to waiver in the true sense of the term. The accused must have the knowledge of two core facts: first, that criminal proceeding is instituted against him and that he has a right to defence; second, by absenting himself, he waives his right to be tried in his presence however, the trial reaches its fruition in his absence.
The right of the accused to be tried in his presence is hinged upon the duty to make himself present in the trial. Once the accused breaches this duty he waives his right. Some scholars debate whether abscondence amounts to waiver or forfeiture24 with some using both the expressions interchangeably.25 If viewed in terms of rights and duties, forfeiture would seem to be the apt term as it is more of a penalty that the accused pays for failing to discharge his duties.26 Perceiving it as a waiver, hints at an approach that tries to soften the tone of the harsh provision by justifying it as a positive action of the absent accused.
It should be etched in stone that the knowledge of either of the two facts cannot be compromised. Such knowledge is legally protected in the form of issue of process27 and supply the documents to the accused28 in criminal proceedings which gives him a fair opportunity of defence in a trial.29 However, in a country like India with abysmally poor legal literacy it would be immensely tough to state with absolute conviction that the accused exercised his free will and waived his right by absconding from the trial presuming that he had the requisite knowledge. Moreover, our existing legal infrastructure is not well equipped to ensure that the accused has access to information for him to make an informed decision for a valid waiver. Waiver of the right to be present by the accused must be unequivocal as it can be positively unnerving if the system falters on any front and blames it on the conduct of the accused to encroach upon his rights.
A provision of trial in absentia puts one in a conundrum where one must make a choice of either walking on the utilitarian path by adopting a system for the greater good being cognizant of the fallacies it encompasses or prioritising the individual interest by maintaining the status quo in the administration of criminal justice. A waiver of the integral procedural elements that make the system fair should be viewed in terms of the public interest theory,30 which may or may not justify such tweaking.
Duty of the State
Waiver of the right by the accused runs parallel to the duty of the State in securing his presence. In trial in absentia, the waiver is implied from the conduct of the accused thus, duty of the State becomes crucial. The State becomes entitled to depart from the norm and proceed with the trial of the accused on the performance of the act of abscondence by the accused. However, such licence presupposes the discharge of certain duties by the State.31 The existence of such bounden duty would make certain that the State does not resort to “absentia trial” as an easy way out by being sluggish in performing its functions.32
This duty of the State kicks in at different stages depending on whether the absentia trial is for partial absconders33 or total absconders.34 However, these duties can largely be in the nature of the following:
(a) The State must exhaust all the measures to secure the presence of the accused and prove that the accused has absconded and there is no immediate prospect of arresting him.35 For instance, delivery of summons or execution of warrants or proclamation under Section 8236 of the Code.
(b) The State must establish that the absconded accused has been duly informed regarding the proceedings instituted against him.
(c) The State must further establish that the absconded accused has been duly informed that the trial would commence or continue in his absence.
As mentioned in the preceding paragraphs, knowledge validates a waiver and the duty to ensure dissemination of information to the absentee accused primarily and solely lies upon the State. Therefore, an accused can be tried in absentia only on fulfilment of two essential conditions one, the accused by his own conduct has waived his right to be present at the trial and second, the State has diligently tried to secure the presence of the accused and equipped him with the requisite information i.e. positive obligation on the State.37
This notion of entitlement by the State to prosecute in absentia is prone to abuse38 and may not stand the touchstone of rule of law. Hence, in the interests of justice it may be necessary to bring in the role of the courts in trial in absentia similar to the law laid down by the courts in United Kingdom39 and the statutory provision contained in the Criminal Procedure Code, 1898 of Bangladesh400 , where the judicial discretion is paramount when it comes to trial in absentia.
The final decision-maker to decide whether to commence or continue with absentia trial could be the courts after the application of judicial mind. This would bring objectivity into the process and help maintain a balance between the rights of the accused and the State’s right to prosecute an accused.
Legal representation to the accused
For a meaningful realisation of the right to defence, the presence of the accused becomes vital.41 Thus, in the absence of the accused one cannot positively term the trial to be just and fair. Therefore, while taking away the right of an absconder accused to be tried in his presence, the legislators should undoubtedly armour him with a guarantee that the proceedings will not be conducted ex parte and that due process will be followed by providing legal representation to such accused by the State. It is interesting that in the provisions of the Code mentioned above where the personal attendance of the accused is dispensed with, his presence is ensured with the representation of his pleader. Hence, the “presence” of the accused may be interpreted to mean either physical attendance or representation by a pleader or both. If a legal system prescribes to such interpretation, then representation by a pleader would include both physical attendance and mental presence of the accused42 or just the mental presence (through his pleader) in the proceedings minus his physical attendance. In a scenario where an accused absconds, legal representation is rendered to be a mere façade as both the components are absent i.e. physical attendance, and mental presence. It is undisputed truth that an advocate is handicapped in the absence of any information from his client. The intricate details provided to him by his client are precious pieces of information that contribute to building the case. Additionally, it may be observed that the Code does not allow for an accused of unsound mind to be tried irrespective of representation by a pleader as he is unable to comprehend the proceedings instituted against him i.e. the mental component is missing.43 Hence, one may take the liberty to conclude that legal representation may not be a valid substitute for the accused’s presence. This assumes greater significance in our country where a number of questions are raised over the quality of legal aid provided to the accused.44
In an adversarial system, the parties to the case become the eyes and ears of the Court. Thus, in the absence of one, the legality of the commencement or continuation of the proceedings comes under the scanner. However, with time as new issues come up before the legal system, new solutions are required to be devised. Trial in absentia is one such creation where certain cardinal principles of criminal trial take a backseat to protect the interests of the public at large and thus, it assumes greater scrutiny and deliberation before being introduced in our Code.
Finding a place for absentia trial in a legal system based on rule of law is quite a tough task that requires a well-crafted maneuvering. First and foremost, the objective that the legislators are trying to achieve by such a provision must be lucid and unclouded. The second step is to determine the scope of the offences or the cases wherein the absconder could be tried as such. Absentia trial may be restricted only to cases where there is more than one accused.45 Further, the question of applicability would also include the types of offences for which trial may be conducted in the absence of the accused. For that the intention with which such a provision is being introduced assumes importance. For instance, if the intention is speedy trial, then an exercise may be conducted to figure out the type of offences wherein the accused absconds defeating the justice delivery system. Accordingly, trial in absentia may be conducted for petty or serious offences. However, one must be cognizant that the ramifications for trying an accused in absentia for serious offences would be graver than for petty or less serious offences.
The third step is to determine and define what constitutes as a “waiver”. There may be several concerns when a right which is for the benefit of the individual is waived at his will. Some may view the right to be tried in the presence of the accused as a non-waivable right altogether and some may favour exceptions to such principle. The fourth step is to outline a procedure before the decision to try the absconded accused in his absence so that the basic postulates of fair trial are maintained. Non-compliance of such procedure should not be viewed as a mere curable irregularity but blatant illegality. In unequivocal terms the obligations to safeguard the interests of the absconded accused should be imposed on the functionaries of the legal system to ensure procedural fairness. For instance, in cases where the accused absconds before the commencement of trial and the trial is conducted in absentia, it may be incumbent upon the State to submit both inculpatory and exculpatory material for fair disclosure. Whilst designing a trial in absentia, the role of the Court cannot be forgotten as it becomes crucial to prevent a claim of unfair trial.
Another concern that the legislators need to ponder upon is the applicability of the provision on the type of absconders. In other words, should the scope of the provision be extended to include within its sweep even total absconders as that may open the gates for issues that one may not be able to foresee at the moment. Or would it be wise to stop the legislative exercise of partial absconders as they are those who are aware of the proceedings against them and thus, are bound by a greater responsibility to respect the law. If they abscond, then it cannot be denied that by their conduct are waiving their right to be tried in their presence. This leads to the question of trial in absentia where the accused jumps bail or absconds before the trial commences. Continuance of trial in absentia and commencement of trial in absentia would require different safeguards and procedures.46 The legality of a trial without compliance of Section 31347 of the Code and the status of such a trial where the absentee accused returns mid-way are other issues, amongst many, that require attention.
What needs to be seen is whether trial in absentia will gain legislative and judicial acceptance and to what extent and form, in times to come.
35. In spite of such observation of the Supreme Court no amendment has been made to Section 299(1) CrPC to provide for trial in absentia of an absconder which may avoid unfortunate loss of valuable evidence due to death of a witness as in the present case.
36. Taking note of the pernicious impact of abscondence on speedy justice and rights of victims, this Court proposes that appropriate amendments be made to the Code of Criminal Procedure for incorporating provision for trial in absentia of an absconding accused for better administration of criminal justice. (emphasis supplied)
5. Kader Khan v. State of W.B., 2022 SCC OnLine Cal 1038, 33. … This unfortunate loss of valuable evidence of a rape victim arises due to the prevalence of an archaic law relating to trial of absconders which does not recognise the evolution of law relating to waiver of fair trial rights of an absconder justifying trial in absentia and emergence of rights of victims, particularly victims of sexual abuse, against secondary victimisation by giving repeated depositions in Court. (emphasis supplied)
6. Fawzia Cassim, “The Accused’s Right to be Present: A Key to Meaningful Participation in the Criminal Process”, (July 2005) The Comparative and International Law Journal of Southern Africa, Vol. 38, No. 2, 285-303.
7. European Convention on Human Rights, 1950, Art. 6(3)(c).
9. “Criminal Trials, Presence of the Accused” (December 1907) The Yale Law Journal, Vol. 17, No. 2, 110-112.
299. Record of evidence in absence of accused.—(1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions.… (emphasis supplied)
13. Criminal Procedure Code, 1973, S. 299. Record of evidence in absence of accused.—(1) … if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
15. “The Presence of an Accused Person at His Trial” (25-1-1898) Harvard Law Review, Vol. 11, No. 6, 409-410.
19. Affidavit was filed by the Ministry of Law and Justice in the matter. A relevant portion of the order in Bachche Lal Yadav v. Akhand Pratap Singh, 2018 SCC OnLine SC 3813 is reproduced hereinunder:
3. An affidavit has been filed by the Ministry of Law and Justice. In Para 5 of the said affidavit, it is stated that the Ministry of Home Affairs which is the Nodal Ministry for administering Code of Criminal Procedure is already seized of the matter regarding amendment to introduce the concept of trial by absentia. (emphasis supplied)
20. “Extent of Valid Waiver of Criminal Procedure” (December 1911) Harvard Law Review, Vol. 25, No. 2, 179-181.
21. James G. Starkey, “Trial in Absentia”, (1979) St. John’s Law Review, Vol. 53, No. 4, 733-745.
22. Fawzia Cassim, “The Accused’s Right to be Present: A Key to Meaningful Participation in the Criminal Process” (July 2005) The Comparative and International Law Journal of Southern Africa, Vol. 38, No. 2, 285-303.
23. “Waiver of the Privilege against Self-Incrimination” (July 1962) Stanford Law Review, Vol. 14, No. 4, 811-815.
24. James G. Starkey, “Trial in Absentia” (1979) St. John’s Law Review, Vol. 53, No. 4, 721-724.
25. Fawzia Cassim, “The Accused’s Right to be Present: A Key to Meaningful Participation in the Criminal Process” (July 2005) The Comparative and International Law Journal of Southern Africa, Vol. 38, No. 2, 285-303.
26. Peter Westen, “Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure” (April-May 1977) Michigan Law Review, Vol. 75, Nos. 5 and 6, 1214-1261.
19. It is settled rule of law that impartial and fair opportunity in a trial are constitutional as well as human right. It is an undeniable duty of the Court to ensure that nothing causes a threat to such a right. It is the right of an accused to adduce evidence in order to raise defence failing which it may tantamount to jeopardising the right to fair trial. Justice can only be ensured if the rules of procedure that have been designed are diligently adhered to. No court shall allow breach of these principles .
30. “Extent of Valid Waiver of Criminal Procedure” (December 1911) Harvard Law Review, Vol. 25, No. 2, 179-180.
31. Andrew Ashworth, “Ignorance of the Criminal Law, and Duties to Avoid it” (January 2011) The Modern Law Review, Vol. 74, No. 1, 1-26.
32. Stan Starygin and Johanna Selth, “Cambodia and the Right to be Present: Trials in Absentia in the Draft Criminal Procedure Code” (July 2005) Singapore Journal of Legal Studies, 170-188.
33. Partial absconders are those persons who have appeared before the functionaries of the legal system at some point and are aware of the proceedings against them, e.g. An accused on bail.
34. Total absconders are those persons who have not appeared before the functionaries of the legal system in connection to the case and it cannot be ascertained whether they are aware of the proceedings instituted against them.
37. Fawzia Cassim, “The Accused’s Right to be Present: A Key to Meaningful Participation in the Criminal Process” (July 2005) The Comparative and International Law Journal of Southern Africa, Vol. 38, No. 2, 285-303.
38. Stan Starygin and Johanna Selth, “Cambodia and the Right to be Present: Trials in Absentia in the Draft Criminal Procedure Code” (July 2005) Singapore Journal of Legal Studies, 170-188; similar to Criminal Procedure Code, 1973, S. 299.
40. Criminal Procedure Code, 1898 (Bangladesh), S. 339-B,
339-B. Trial in absentia.—(1) Where after the compliance with the requirements of Ss. 87 and 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. (emphasis supplied)
41. “Criminal Law and Procedure: Right of Accused to be Present at Trial” (May 1935) Michigan Law Review, Vol. 33, No. 7, 1104-1106.
42. James G. Starkey, “Trial in Absentia” (1979) St. John’s Law Review, Vol. 53, No. 4, 721-724.
44. Justice U.U. Lalit, keynote speech at Actualisation of Rights and Entitlements in Achieving Sustainable Development Goals — 2030, (24-10-2021), see also, Commonwealth Human Rights Initiative, Hope Behind Bars, Status Report on Legal Aid for Persons in Custody, Vol. 1 (2018).
45. As cited in James G. Starkey, “Trial in Absentia” (1979) St. John’s Law Review, Vol. 53, No. 4, 727-730, in United States v. Tortora, 464 F 2d 1202 (2nd Cir., 1972) (given for uploading), the United States Court of Appeals for the Second Circuit noted the following:
“It is difficult for us to conceive of any case where the exercise of this discretion would be appropriate other than a multiple-defendant case.”
46. Diaz v. United States, 1912 SCC OnLine US SC 58 : 56 L Ed 500 : 223 US 442 (1912) and Falk v. United States, 15 App DC 446 (DC 1899), as cited in James G. Starkey, “Trial in Absentia” (1979) St. John’s Law Review, Vol. 53, No. 4, 724-727.