Trial in absentia : Legality and Necessity

One of the well accepted principle of Natural Law is that, “No person shall be condemned unheard“. Moreover, the deterrent theory of punishment professes for prompt punishment of the wrong-doers for creating exemplary signposts for the citizenry to be refrained from committing any crime.

However, there are some situation when the court has to run the trial in absence of the accused. The victim of the crime imposes an undeniable influence on the court to render justice in time. Therefore, The Code of Criminal Procedure allow to proceeds in absentia trial to provide justice against fugitive criminals.

When in a case the whole of the accused or any of them become fugitive and police failed to made a successful arrest of them. In spite of issuing all processes, if some of the accused persons or all the accused persons do not appear before the court then steps should be taken to hold trial in absentia for those fugitives both in complaint and police cases.

In section 339B, it has been clearly mentioned that the court can pass such an order when it has reason to believe that an accused has absconded or concealed her/him or that there is no immediate prospect of arresting her/him. It is pertinent to mention that publication of the notice in a local newspaper having negligible circulation will not be considered as adherence to the provisions of section 339B of CrPC.

After publication of notice in the newspapers, if the person appears before the court in compliance with the direction, then the court may pass necessary order for sending him to the custody or may grant bail on consideration of any bail prayer placed before it. However, if s/he does not appear in compliance with the direction, the Court is under an unyielding legal obligation to pass the second order for holding trial in absence of the said absconding person and accordingly shall fix a date for hearing under section 241A or 265C of the Code.

The cases which are to be tried by a Tribunal constituted under Nari-O-Shishu Nirjatan Daman Ain, 2000, the Tribunal has the power to take necessary steps for holding trial in absentia. Such provision is contained in section 21 of the concerned law. Therefore, in such a case, Judicial or Metropolitan Magistrates are not authorized to pass any order directing an accused person who could not be arrested or who remains absconded or concealed himself to appear before the Court by publishing any notice in the newspapers.

Similarly, in cases which are to be tried by any Special Tribunal constituted under section 26 of the Special Powers Act, a court of Judicial or Metropolitan Magistrate can issue processes under sections 87 and 88 of CrPC, but cannot take steps for publishing notice in the newspapers giving a direction to the absconding accused to appear before the concerned court within a specified time. Such power is given to the Special Tribunal itself under Sub-section (6) of section 27 of the Special Powers Act, 1974.

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