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Relevance: GS-II (Judiciary, Criminal Justice Reforms, Laws for Vulnerable Sections) Source: Legal Reviews & Criminal Law Updates, 2026

Trial in Absentia under BNSS: How Can Indian Courts Try Fugitives Who Hide Abroad?

1 · What is the news in simple words?

Recently, a Special Court in Jammu issued a non-bailable warrant against a Pakistan-based terror chief regarding the Pahalgam attack case. Since terrorists operating from foreign soil refuse to appear before Indian courts, our justice system historically had to pause their trials indefinitely.
However, under the new Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023—which replaced the old CrPC—investigating agencies can now seek a “Trial in Absentia” (Section 356). This means the court can legally run a full criminal trial and pass a final judgment even if the accused is hiding in another country!

2 · Old Law vs. New Law: How Did Things Change?

Under the old CrPC, you could only attach a fugitive’s property or record partial witness statements. You could never finish the trial or convict them until the police actually caught them. The BNSS changes this rule completely:

Who Can Be Tried?
Only Grave Crimes
You cannot use this for minor thefts or petty crimes! Under Section 84, it strictly applies to individuals officially declared as “proclaimed offenders” facing crimes punishable by death, life sentence, or 10+ years in jail.
The 90-Day Shield
Time to Surrender
To prevent hurried judgments, the actual trial cannot start until 90 days have passed from the date charges were framed. Notice must also be published in newspapers and displayed at their last known home.
Free Legal Defense
State-Funded Lawyer
Even if the accused is a runaway terrorist, Indian natural justice demands a fair fight. If the absconder has no lawyer, the court must appoint a defense lawyer at the State’s expense to argue their side.
The Extradition Trap
A Potential Challenge
While great for domestic closure, Western courts (like UK or Europe) might refuse to deport a convicted fugitive back to India if they feel a “trial without the accused” violates international human rights standards!

  • Digital Recording Mandate: All witness statements during such trials must be recorded using audiovisual electronic means to maintain total transparency and accuracy for future reviews.
  • What if the fugitive returns later? If the runaway criminal is arrested or surrenders later on, the law is merciful: the court may allow their lawyer to cross-examine old witnesses again in the interest of justice.

UPSC Prelims Quick Facts
Section 356 (BNSS, 2023) The specific statutory provision that allows a criminal court to conduct an inquiry, trial, and pronounce judgment in the absence of a proclaimed offender.
Article 21 Right to Life and Personal Liberty. Critics debate whether a trial without the physical presence of the accused violates the constitutional guarantee of a fair trial.
ICCPR Article 14(3)(d) International Covenant on Civil and Political Rights. An international treaty signed by India which generally mandates that every citizen has the right to be tried in their own presence.
Proclaimed Offender A person who is evading a court warrant for serious crimes and against whom the court has published a formal public notice (proclamation) requiring them to appear.

MCQ Practice Question
Q. With reference to ‘Trial in Absentia’ under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, consider the following statements:

  1. A court can conduct a trial in absentia for any criminal offense punishable by imprisonment of three years or more.
  2. The trial cannot officially commence until a waiting period of 90 days has elapsed from the date the charges were framed against the absconding accused.
  3. If an absconding accused is unrepresented by a lawyer, the court is legally obligated to appoint a defense advocate at the expense of the State.

Which of the statements given above is/are correct?
(a) 1 and 2 only    (b) 2 and 3 only    (c) 1 and 3 only    (d) 1, 2 and 3

Answer: (b) 2 and 3 only

  • Statement 1 — Incorrect (the trap): You cannot use a trial in absentia for minor crimes! It strictly applies to individuals officially declared as “proclaimed offenders” facing grave crimes punishable by death, life imprisonment, or a jail term of 10 years or more.
  • Statement 2 — Correct: To protect the principles of natural justice and give the fugitive a fair chance to surrender, the statute enforces a mandatory 90-day waiting period after charge-framing.
  • Statement 3 — Correct: Under Section 356, the State must provide free legal counsel to defend the absconder if they have no personal lawyer representing them.
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