Trial in the Absence of the Accused

The Explanation, which is new. For the purpose of this section, personal attendance of the accused includes attendance through audio-video electronic means.

Section 356: trial and judgment in absentia

Sub-section (1), the rule. Notwithstanding anything in the Sanhita or in any other law, when a person declared as a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, it shall be deemed to operate as a waiver of his right to be present and tried in person, and the Court shall, after recording reasons in writing, in the interest of justice, proceed with the trial in the like manner and with like effect as if he was present, and pronounce the judgment.

Proviso: the Court shall not commence the trial unless a period of ninety days has lapsed from the date of framing of the charge.

Sub-section (2), the four things the Court must ensure first.

(i) issuance of two consecutive warrants of arrest within the interval of at least thirty days; (ii) publication in a national or local daily newspaper circulating in the place of his last known address of residence, requiring him to appear for trial and informing him that if he fails to appear within thirty days of the publication, the trial shall commence in his absence; (iii) inform his relative or friend, if any, about the commencement of the trial; and (iv) affix information about the commencement of the trial on a conspicuous part of the house or homestead where he ordinarily resides, and display it in the police station of the district of his last known address.

Sub-section (3), counsel. Where the proclaimed offender is not represented by any advocate, he shall be provided with an advocate for his defence at the expense of the State.

Sub-section (4), evidence already recorded. Where the Court competent to try or commit has examined prosecution witnesses and recorded their depositions, those depositions shall be given in evidence against the proclaimed offender.

Proviso: if he is arrested and produced, or appears, during the trial, the Court may, in the interest of justice, allow him to examine any evidence taken in his absence.

Sub-section (5), the record. The deposition and examination of witnesses may, as far as practicable, be recorded by audio-video electronic means, preferably mobile phone, and the recording kept as the Court directs.

Sub-section (6), later absence. Voluntary absence of the accused after the trial has commenced under sub-section (1) shall not prevent continuing the trial, including the pronouncement of judgment, even if he is arrested and produced or appears at the conclusion of the trial.

Sub-section (7), appeal. No appeal shall lie against a judgment under this section unless the proclaimed offender presents himself before the Court of appeal. Proviso: no appeal against conviction shall lie after the expiry of three years from the date of the judgment.

Sub-section (8), extension. The State may by notification extend the provisions of this section to any absconder mentioned in section 84(1).

Sub-section (7) is the answer to the obvious objection. A man tried in his absence keeps a right of appeal, but he must come to court to use it, and he must come within three years.

Section 357: the accused who cannot understand

If the accused, though not a person of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than a High Court, if the proceedings result in a conviction, they shall be forwarded to the High Court with a report of the circumstances, and the High Court shall pass such order as it thinks fit.

Read the opening words carefully. This is not the section for a person of unsound mind; that is sections 367 to 378. Section 357 is for a person who is sane but cannot be made to follow, the deaf and mute accused being the classic instance. The trial goes on, but a conviction is not final until the High Court has seen it.

Section 358: proceeding against another person

Sub-section (1). Where, in the course of an inquiry or trial, it appears from the evidence that a person not being the accused has committed an offence for which he could be tried together with the accused, the Court may proceed against him for that offence.

Sub-section (2). If he is not attending the Court, he may be arrested or summoned, as the circumstances require.

Sub-section (3). Any person attending the Court, although not under arrest or upon a summons, may be detained by the Court for the purpose of the inquiry or trial of the offence he appears to have committed.

Sub-section (4), and this is the price of the power. Where the Court proceeds against such a person:

(a) the proceedings in respect of him shall be commenced afresh, and the witnesses re-heard; (b) subject to clause (a), the case may proceed as if he had been an accused person when the Court took cognizance of the offence on which the inquiry or trial commenced.

Clause (a) is what makes section 358 fair. The new accused is not saddled with evidence recorded before he was one. The proceedings start again and the witnesses are heard again.

A worked example

Four men are charged with a dacoity. One, Nadeem, absconds before the charge is framed and is later declared a proclaimed offender under section 84.

Can the trial of Nadeem proceed? Only under section 356, and only if he absconded to evade trial and there is no immediate prospect of arresting him.

When may it start? Not until ninety days have passed from the date of framing of the charge, proviso to section 356(1).

What must the Court first ensure? All four steps of section 356(2): two consecutive warrants at least thirty days apart; newspaper publication at his last known address, giving him thirty days to appear and warning him that the trial will otherwise begin in his absence; information to a relative or friend; and affixation at his house and display at the police station of the district of his last known address.

He has no lawyer. One is provided at the expense of the State, section 356(3).

How is the evidence recorded? As far as practicable by audio-video electronic means, preferably mobile phone, and kept as the Court directs, section 356(5). Depositions already recorded by the competent Court shall be given in evidence against him, section 356(4).

He is arrested midway and produced. The Court may, in the interest of justice, allow him to examine any evidence taken in his absence, proviso to section 356(4).

He then absconds again. His voluntary absence after the trial has commenced does not stop the trial or the judgment, section 356(6).

He is convicted and wants to appeal. He may, but only by presenting himself before the appellate Court, and not after three years from the date of the judgment, section 356(7).

Now take a different accused in the same case. He is old and ill, and represented by counsel. The Court may, for reasons recorded, find his attendance not necessary in the interests of justice and dispense with it, section 355(1); and his attendance, when required, includes attendance by audio-video electronic means, Explanation. If he had no advocate, the Court would instead adjourn or try his case separately, section 355(2).

A third accused persistently shouts down the proceedings. That is the second ground in section 355(1), and if he is represented, the Court may proceed in his absence.

During the evidence it emerges that a fifth man drove the getaway car. The Court may proceed against him under section 358(1), summon or arrest him if absent, or detain him if he is present in Court; and then the proceedings begin afresh and the witnesses are re-heard, section 358(4)(a).

And a sixth accused, deaf and mute, cannot be made to understand the proceedings though he is sane. The Court may proceed under section 357; if it convicts, the proceedings must be forwarded to the High Court with a report, and the High Court passes such order as it thinks fit.

Distinctions

What this does NOT mean

Section 355 is not a trial in absentia. It is a dispensation from attendance, available only where the accused is represented by an advocate, and revocable at any subsequent stage.

Section 356 is not available against every absconder. He must be a person declared a proclaimed offender, who absconded to evade trial, with no immediate prospect of arrest; and section 356(8) shows the point, because the State must notify before the section reaches other absconders under section 84(1).

It does not deny a defence. An advocate is provided at State expense, evidence is recorded by audio-video means, and a man who appears mid-trial may be allowed to examine the evidence taken in his absence.

It does not abolish the appeal. It conditions it: present yourself, and within three years.

Section 357 is not a licence to convict a man who cannot follow his trial. Every conviction by a Court other than a High Court goes to the High Court with a report of the circumstances.

And section 358 does not add a new accused to an old record. Clause (a) of sub-section (4) requires the proceedings against him to be commenced afresh and the witnesses re-heard.

Quick revision

• 355(1): dispense with attendance where it is not necessary in the interests of justice or the accused persistently disturbs the Court, only if he is represented by an advocate, reasons recorded; attendance may be directed again later.
• 355(2): no advocate, or attendance considered necessary, then adjourn or try separately. Explanation: attendance includes audio-video electronic means.
• 356(1): a proclaimed offender who absconded to evade trial with no immediate prospect of arrest is deemed to waive his right to be present; the Court proceeds and pronounces judgment; not before ninety days from the framing of the charge.
• 356(2): two warrants thirty days apart, newspaper publication with thirty days' notice, inform a relative or friend, affix at the house and display at the police station.
• 356(3) to (5): advocate at State expense; depositions already recorded are evidence against him, with leave to examine them if he appears; recording by audio-video means, preferably mobile phone.
• 356(6) and (7): voluntary absence after commencement does not stop the trial or judgment; no appeal unless he presents himself, and none against conviction after three years.
• 356(8): the State may extend the section to absconders under section 84(1) by notification.
• 357: an accused not of unsound mind who cannot be made to understand; the Court may proceed, and any conviction goes to the High Court with a report.
• 358: the Court may proceed against another person appearing from the evidence to be guilty and triable with the accused; arrest, summon or detain him; then start afresh and re-hear the witnesses.

Test yourself

1. What is the condition on which a Court may dispense with the accused's attendance? That he is represented by an advocate; and the Court must be satisfied, for reasons recorded, that his personal attendance is not necessary in the interests of justice, or that he persistently disturbs the proceedings, section 355(1).

2. Against whom does section 356 operate? A person declared a proclaimed offender, whether or not charged jointly, who has absconded to evade trial where there is no immediate prospect of arresting him.

3. How long must the Court wait after framing the charge? Ninety days; the trial shall not commence before that, proviso to section 356(1).

4. Name the four steps the Court must ensure before trying a proclaimed offender in his absence. Two consecutive warrants of arrest at least thirty days apart; publication in a national or local daily circulating at his last known address, giving thirty days to appear; informing a relative or friend; and affixing the information at his residence and displaying it at the police station of that district, section 356(2).

5. Can such a judgment be appealed? Only if the proclaimed offender presents himself before the Court of appeal, and no appeal against conviction lies after three years from the date of the judgment, section 356(7).

6. What happens where a sane accused cannot be made to understand the proceedings? The Court may proceed; and if a Court other than a High Court convicts him, the proceedings must be forwarded to the High Court with a report of the circumstances, and the High Court passes such order as it thinks fit, section 357.

7. If the evidence shows another man is guilty, can the Court add him? Yes, under section 358(1), where he could be tried together with the accused; but the proceedings against him must be commenced afresh and the witnesses re-heard, section 358(4)(a).