In Absentia Judgment: (Examining the Changing Dimensions)

Introduction

A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy¹. Every “criminal trial” is an odyssey of discovery in which truth is the ultimate quest. The way of truth, on the whole, may be long and cumbersome process. Be that as it may, we have to go all that way because this is only the surest way. The principal objective² of a criminal trial is to ensure fair trial. A fair trial³ has naturally two objects; one is it must be fair to the accused and the other is it must be fair to the prosecution. In other words, it is based on the principles of justice and fairness. Trial in a criminal case culminates in the pronouncement of judgment by the court. However, there is no definition of “judgment” under the Criminal Procedure Code, 1973⁴ (hereinafter referred to as “CrPC”) and the Code is singularly silent on this. In Halsbury’s Laws of England⁵ there is a distinction regarding the meaning and purport of the word “judgment” in criminal proceedings. By the word “judgment” is meant an order in a trial culminating in either the conviction or acquittal of the accused. Judgment may be pronounced both in presence and absence of the accused person. To put it shortly, in absentia judgment simply means deliverance of the judgment in the absence of the accused. Although, the general rule⁶ is that accused must be present when the judgment is to be pronounced, there are, however, some notable exceptions to this rule.

The present paper focuses upon the legal regime that deals with “in absentia” judgment, the issues and challenges and the critical evaluation thereof.

Statutory provisions

Even though the normal rule under the CrPC is that an accused person must be present at all stages of their criminal trial, there are some exceptions to this rule.

Section 205⁷ CrPC allows a Magistrate to excuse the accused from appearing in person if the Magistrate thinks there is a good reason to do so. In such cases, the accused can be represented by a lawyer instead. However, at any point during the proceedings, the Magistrate can still ask the accused to be present in person if needed, and can enforce this requirement.

Section 317⁸ CrPC also provides for situations where the court can continue the trial without the accused being physically present. If the Judge or Magistrate believes that the accused’s presence is not necessary for justice, or if the accused is disrupting the court proceedings, the court can allow the trial to go on in their absence, as long as the accused is represented by a lawyer. Still, the court can later ask the accused to appear in person whenever required. If the accused does not have a lawyer or the court feels their personal presence is necessary, the court can postpone the hearing or separate their case from others.

Exceptions and exemptions: Understanding Sections 205 and 317 CrPC

Can an accused be granted exemption from personal appearance? What is the extent of exemption which an accused can be granted by the Court trying him as an accused in a case?

From a perusal of Sections 205 and 317 of the Code, it is writ large that the Court has wide power to dispense with the personal appearance of the accused at all stages of the proceedings. Section 317 covers the stage after the inquiry or trial is commenced. Section 205 deals with the stage after the commencement of the proceedings before the Magistrate thereby indicating that in appropriate cases the presence of the accused can be dispensed with even at the initial stage including the first appearance and permit him to participate in the trial through his pleader, subject to the conditions imposed by the Court.

Understanding exemption from personal appearance of the accused under CrPC

Section 317⁹ of the Code of Criminal Procedure (CrPC) applies after the inquiry or trial has already started. It allows the Judge or Magistrate to let the trial continue even if the accused is not personally present, provided there are valid reasons and the accused is represented by a lawyer. Section 205¹⁰, on the other hand, applies even earlier—right from the beginning of the proceedings before the Magistrate. It gives the Magistrate the authority to excuse the accused from appearing in person at the very first stage (like the first court appearance) if the Magistrate believes it is appropriate. In such cases, the accused can attend the proceedings through their lawyer. However, this is allowed only under certain conditions:

1. The accused must be represented by a lawyer at all times.

2. The accused must not deny their identity as the person charged.

3. The accused must appear in person whenever the court feels it is absolutely necessary.

Courts may also exempt an accused from appearing in person in situations where the punishment is just a fine or if the accused is going to be acquitted. For example, in minor or “petty” offences, a court can deliver a verdict even if the accused is not physically present on the day of judgment. Pertinently, there are no rigid rules in the CrPC about when an accused should be exempt from appearing in court. It is entirely up to the discretion of the Magistrate, who must use this power wisely and with proper reasoning. To put it tersely, it should be based on the ratiocination of the Magistrate and the decision should not be arbitrary or casual. This concept is not unique to India. In England¹¹, for instance, courts may also pronounce judgments in the absence of the accused if they are seriously ill or physically unable to attend. That being said, in India, Section 353(6)¹² and (7)¹³ CrPC allow the court to pronounce a judgment even when the accused is not present in court at that time. Additionally, Section 418(2)¹⁴ provides a method for enforcing a sentence passed in the absence of the accused.

To summarise, while the law does offer flexibility in allowing accused persons to skip personal appearance under certain conditions, it must be done responsibly and used sparingly keeping in mind the interests of justice and fairness.

Issues and challenges

The interplay of Section 353 CrPC with other provisions of CrPC like Sections 363(1) and 428

1. Is a convict entitled to get a copy of judgment free of cost if he was absent on the date of pronouncement of judgment?

It is well-settled principle, as per Section 363(1)¹⁵ CrPC that every convict has right to get a copy of judgment free of cost meaning thereby a copy of judgment shall be given to the convict forthwith after the deliverance of judgment. In short, it is a matter of right of the convict. But the problem arises when the convict remains absent on the date of judgment and claims later on a copy of judgment free of cost. In my humble opinion, when Section 363(1) is read harmoniously with Section 353(6) CrPC, it would appear that the accused would not be entitled to get a copy of judgment free of cost, if he was absent on the date of pronouncement of judgment of conviction.

2. Suppose a situation where a prisoner has already suffered imprisonment of three months before getting bail in a case and on the conclusion of trial, he is convicted for imprisonment for three months in respect of the offences for which trial was held. He remains absent and in his absence the judgment of conviction is pronounced. He pleads that the benefit of Section 428¹⁶ CrPC must be extended to him and the imprisonment already undergone by him previously for three months must be set off against the period of conviction he has been awarded in the case. But he does not appear before the Court for getting the benefit under Section 428 CrPC. The pertinent question is — will his already undergone period of imprisonment be set off even though he remains absent while so pleading under Section 428 CrPC¹⁷? In my respectful submission, the convict has to appear before the Court to plead the benefit of Section 428 CrPC to set off the period of imprisonment he has already suffered as against the period of imprisonment he is asked to undergo as punishment. Though the accused was convicted in absentia, yet to get the benefit he remains present before the Court. Set off cannot take automatically.

BNSS, the new law: Is there any paradigm shift?

No significant departure from the existing law in the CrPC can be noticed in the new Nagarik Suraksha Sanhita, 2024¹⁸ (hereinafter referred to as “BNSS”) with regard to “in absentia” judgment and its execution. Sections 385 and 386 of the BNSS deal with in absentia judgment and Section 392 of the BNSS deals with its execution. However, the existing law has been made more specific in form and wide in scope. For instance, it has been enacted under Section 365 of the BNSS that the trial Judge has to wait for 90 days before commencing the trial after framing of charge against the accused. Moreover, prior to proceeding in absentia, the Court has to ensure the following:

(1) Issuance of two warrants of arrest consecutively within an interval of at least thirty days.

(2) Intimation to proclaimed offender through publication in a national or local daily newspaper as regards the commencement of trial in absentia if he fails to appear in the case.

(3) Information to his relative or friend as to the commencement of trial.

(4) Affixation of information as regards the commencement of trial on some conspicuous part of his residence or its display in local police station.

Moreover, a new concept of deemed joint trial has been introduced vide Explanation II to Section 24¹⁹ of the Sakshya Adhiniyam, 2023, where a trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 of the Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for a purpose of this section.

Judicial approach

Taking cue from the law enacted by Bangladesh, the Supreme Court in Hussain v. Union of India²⁰, suggested the Parliament to take stock of the changing dimensions of law in different jurisdictions of the world where the existing law pertaining to criminal trial has been modified to remedy the malady of delayed trial caused by the absconsion of the accused during trial by incorporating the provisions for in absentia trial and resultant judgment.

Critical appraisal

The trial courts in India have a huge pendency of cases and one of the various reasons for it is the pendency of a lot of cases where the accused persons have either absconded or are not traceable or are absent before the Court. It is true that trial in the absence of the accused is violative of human rights of the accused, but at the same time delay in trial due to the absence of the accused would also be against the settled right to speedy justice under Article 21²¹ of the Constitution. Therefore, waiting for the accused for his participation in trial for a long time will only add to the ever-increasing pendency of cases ultimately telling upon the efficiency of criminal justice system.

Conclusion

In view of the changing scenario worldwide, where different countries have been amending and providing for “in absentia trial and judgment” in their respective criminal laws, timely amendment has been introduced through BNSS by the Parliament to provide for the “in absentia” trial and consequent judgment against the accused with an avowed object to lessen the load of pendency of cases and to provide timely justice. It is not that the right of the accused to participate in the trial has been taken away, but that an exception has been carved out so that the ill-effect upon the criminal justice system may be minimised due to the intentional absence of the accused during trial. The concept is in consonance with and not in derogation of human rights of an accused.