Guest Post: Trial in Absentia under BNSS — A Procedural Quagmire?

(This is a guest post by Acharaj Kaur Tuteja)

The Bhartiya Nagrik Suraksha Sanhita, 2023 has made several conspicuous departures from the Criminal Procedural Code, 1973 in an attempt to streamline criminal procedures in the country. Among these is Section 356 which permits the trial of proclaimed offenders in their absence and points towards the evolving relationship between state convenience and procedural fairness. At first glance, the provision seeks to solve a practical problem: the stagnation that follows in courtrooms when accused persons abscond. But beneath the pragmatic veneer lies a set of unanswered questions about what is willing to be traded in the name of efficiency.

Trials in absentia are not a novel idea. Jurisdictions across the world have flirted with the idea out of political necessity or emergency. Indian law, however, has resisted this temptation by tethering the right to a fair trial to the physical and participatory presence of the accused. Section 356 marks a departure from that tradition. What does it mean to conduct a criminal trial without the accused? Can the adversarial process survive the absence of one of its central participants? And how, if at all, does this square with the constitutional promise of due process under Article 21?

This post explores Section 356’s structure and underlying presumptions. It demarcates the dangers it presents to a system already overburdened by inequitable procedural protections. The BNSS’s solution leans towards the kind of innovation that is prioritising closure before justice. A hasty conclusion may reconstruct Kafka’s courtroom in modern Indian criminal law, despite the validity of the state’s interest in avoiding delay.

Dissecting Section 356: Text and Structure

To break it down, Section 356(1) empowers the Court to proceed with trial if the accused, after being declared a proclaimed offender under Section 84, continues to evade appearance. This proclamation arises only after issuance and non-compliance with a warrant, followed by a public notice. The trial may not only begin, but conclude, and a judgement may be rendered in the absence of the accused. The Court merely has to record the reasons in writing and ensure representation via a pleader. A notice has to be published additionally in a national or local newspaper – a formality that may neither inform or alert the accused in rural or otherwise marginalised contexts.

Section 356 fails to make a legal distinction between two conflated categories: the absconding accused and the absentee accused. The former is a legal status granted by Section 84 BNSS after meeting specific requirements, mostly post-proclamation wilful evasion. The latter’s absence may be for a variety of reasons, including illness, non-service of summons, coercion, or logistical inaccessibility. There is a chance that the legislation will dismantle these classifications, establishing a loophole whereby absence is assumed to be inherently related to guilt. Unfortunately, the language of Section 356 does not operationalise the subtlety that not all absentees are absconding.

Section 356 sidelines the requirement for deeper judicial inquiry into whether such evasion is wilful, or whether the absence results from coercive tactics or abuse of power by investigating agencies. This opens the door to strategic absences orchestrated by the police or other law enforcement authorities. The absence of terms such as ‘maliciously’ or ‘deliberately’ in the statutory text does not relieve the Court from conducting such inquiries; rather, this omission renders the provision even more susceptible to abuse, where the bare fact of non-appearance becomes sufficient to greenlight trial.

The Illusion of Remedy: Examining of Witnesses and Making an Appeal

The proviso under clause (4) of Section 356 states that if the proclaimed offender is arrested and produced before the Court during trial, the Court may, in the interest of justice, allow him to examine any evidence which may have been taken in his absence. Firstly, the clause imposes a double burden: the accused must prove both a) lack of notice and b) the absence of a wilful evasion. This reverses the usual presumption of innocence and places the accused in a position where they are trying to recover a sliver of participation in proceedings that have already condemned them.

Secondly, the court is under no obligation to allow cross-examination, nor is there a requirement to re-open earlier stages of the trial. The word ‘may’ vests a discretionary power with the court. This lack of guarantee under the clause goes against the principle of providing the accused with a reasonable opportunity of being heard. The Supreme Court, in the case of State of Kerala v. KT Shaduli Grocery Dealer, allowed the assessee to cross-examine the witnesses on whose evidence the Sales Tax Officer had relied to make the arrest. The Court recognised that under the rule of audi alterem partem, “to prove” means to establish the correctness, or completeness of a fact by any mode permissible under law. The usual mode recognised by law for proving a fact is by production of evidence and evidence includes oral evidence of witnesses. The opportunity to prove the correctness would, therefore, necessarily carry with it the right to cross-examine the witnesses.

The accused, once labelled a proclaimed offender and tried in absentia, may find themselves returned to a process that has long since passed them by, with key evidentiary stages foreclosed. The danger of an unfair trial is further compounded by clause (6) that states that even if the accused is produced before court or arrested at the conclusion of the trial, the proceedings need not be stalled. The judgement can be pronounced in their absence. Moreover, the right to appeal is curtailed under Section 356(7) wherein the appeal is barred unless the offender presents himself before the appellate court within 3 years of the passing of the judgement.

What happens then, is a skeletal notion of a trial, moving from absence to conviction without substantive procedural rights. In Kartar Singh v. State of Punjab, the Supreme Court was unequivocal in its caution: dilution of safeguards in the name of expediency, carries the risk of systemic abuse and wrongful conviction. The purity of the procedure to discover truth shall always remain fair, sensitive to the needs of the society and fairly and justly protect the accused. And these clauses of Section 356 exist not to protect the accused, but to immunise the provision from critique.

Undermining Adversarial Ethos

Under Section 356(1) the Court is empowered to proceed with the trial of a proclaimed offender “in the like manner and with the like effect as if he was present”, thereby eliminating any procedural distinction between a full adversarial trial and a unilateral one. The assertion that the accused’s wilful absence amounts to a waiver of rights, becomes a linchpin to justify lack of procedural parity.

The right to be tried in person, to confront witnesses, and to mount a defence are all implicit in Article 21’s expansive right to a fair trial. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat, while affirming the centrality of a fair trial, clarified that it includes not just the right of the prosecution but, more importantly, of the accused to have their case heard fully and fairly. This renders the trial permitted under Section 356 structurally disfigured. Informing the accused’s friend or relative and ensuring that legal aid is appointed does not cure the deeper malaise of negating the accused’s participatory rights.

This transformation of the trial from adversarial to inquisitorial is not accompanied by the institutional safeguards of the latter. In inquisitorial systems, the judge assumes an investigative role, bound by duties of neutrality and evidence-gathering in favour of both sides. Indian courts, in contrast, are not structured for such a role. The result is a hybrid system that borrows the most coercive aspects of the inquisitorial form while discarding the checks and balances that justify its operation.

Conclusion

There is no denying that trials in absentia address a very real institutional challenge. In an overburdened criminal justice system, where accused persons routinely manipulate safeguards to stall proceedings, Section 356 may act as a corrective. It reaffirms that justice will not be held hostage to deliberate non-appearances.

However, the problem does not justify abandonment of the process. The risk lies in the unstructured application of trials in absentia. The provision, in its current form, rests on a troubling presumption: that a proclaimed offender’s absence is necessarily wilful, and that procedural compliance with notice formalities is enough to substitute meaningful participation. A declaration under Section 84 BNSS is formally premised on wilful concealment or absconding but the statute’s structure outsources that finding to procedural triggers (two warrants, public notice, etc.), not to a substantive inquiry into motive or capacity. In other words, the statute assumes wilfulness from procedural non-compliance. But procedural non-compliance can occur in a number of ways that have nothing to do with intent. The ask isn’t to duplicate the finding of wilfulness - it’s to interrogate how shallow the first one really is. If procedural default alone gets elevated into a legal fiction of intentional evasion, then a second judicial inquiry – before triggering the far more serious consequence of trial in absentia – becomes less redundant and more necessary.

To avoid this turning into a tool of convenience, certain safeguards must be built into the provision. Firstly, the judicial determination of whether the accused has actually absconded should be more than just a declaration. It should follow an inquiry to examine whether the accused had a reasonable opportunity to appear, and whether the evasion is deliberate or due to an extraneous hardship. Secondly, recording depositions via audio-video [as mentioned in Section 356(5)] should be the norm, not a technological afterthought. The attempts to contact the accused in any manner must be furnished duly. Thirdly, the accused should have the opportunity to retrospectively participate in the trial and cross-examine the witnesses if the conviction has been based on their evidence. And lastly, use of Section 356 must be accompanied by periodic judicial review to ensure that the waiver of rights was voluntary in nature.

Trial in absentia, then, is not inherently illegitimate, but it is inherently dangerous. It demands a justice system that can distinguish between tactical evasion and structural absence, between the wilfully hidden and the invisibly marginalised. Without such discernment, Section 356 risks becoming a procedural sleight of hand, manufacturing the illusion of fair process while steadily hollowing it out. The State’s interest in proceeding with trials must not eclipse the constitutional guarantee of a fair one. To that end, the legitimacy of this provision will rest not on how often it is used, but on how scrupulously it is constrained.

Two Sides of the Same Coin

Outside of the legal fraternity, it did not matter much that some judges of the Supreme Court were retiring in these past weeks. Within the legal fraternity, though, the retirement of Justice A.S. Oka led to a genuine outpouring of affection and emotion from across the aisles; no doubt made more stark by the near total absence of such reaction a few days prior in respect of Justice Trivedi. 

Revisiting this juxtaposition, and reading several judgments authored by the two retiring Justices (limited, largely, to the field of criminal law and procedure), I could not escape thinking how Justices Oka and Trivedi are but two sides of the same coin of judicial discretion. When it came to matters of criminal law, the former wielded discretion to actively question exercise of state power, while the latter wielded judicial discretion to shield the state from questions; of course, subject to exceptions. 

We might like one approach over another, sure, and there are no doubts about which approach this blog might prefer. But the unfortunate truth is that our preferences do not count for much as a legal principle. I say this, because at the end of the day, in our frustratingly polyvocal judicial system with its constitutional mandate of rights riddled with exceptions, there is no single correct approach to issues that these judges were dealing with. There is no fundamental principle, no categorical imperative in these parts.

If anything, the closest thing that Indian constitutional jurisprudence in action appears to have in the name of 'principle', is a loose concept of balance. A jurisprudence of the 'Force' in Star Wars with its constant tussle between dark and light, if you like. In this jurisprudence of balance, every story has two sides, every right is tethered to its exceptions, and so even the most egregious instance of personal liberty being violated is not an absolute but can have some justification that requires we form a special investigation team to find out. 

This is our fickle rule of law, where consistency in outcomes is an honourable exception and even the simplest case appears to be cast in jeopardy. A few senior lawyers I know stress the jeopardy aspect by telling their clients that going to court, especially superior courts, is quite like playing high-stakes poker. Are they wrong? Administration of such a 'rule of law' where every scenario brooks an exception ultimately turns entirely upon how every singular actor wields their discretionary power to advance their personal notions of law, justice, and whatnot. One judge can view that discretionary power as being guided by a vision to uphold liberty, the other can view that same power as guided by a mission to secure law and order. Both views are correct, as much as you might not like one of them. 

The problem is that both views should not coexist in all scenarios. Some situations do not justify two views. Some cases only have one correct view. And these truths should not change whether we are dealing with petty disputes between family members or dealing with dissidents who disagree with the State and its policies. In ours, however, they do. A jurisprudence of balance is not one in which the rule of law retains an inconvenient and unwavering consistency in times of war as in times of peace, but one where law must have the flexibility to bend and contort itself into whatever is the convenient shape for the day. Is this jurisprudence of convenient balance something to be scornful about? At times. But if you think about the high chance that any revisit of the status quo will make things intolerably and inexorably worse — by, say, stacking all the decks in favour of the State — then a constant tussle between impulses is a happy compromise to live with. 

We can eulogise one judge and demonise another all we like, but no one person or their vision can straighten out the many contradictory impulses within the Indian legal system, all of which can be traced back to the Constitution itself. In the grand scheme of things, all that they manage is tilt the balance, by wielding their awesome power of judicial discretion. Depending on where you stand, that tilting of balance is something will either be something to be very grateful for, or extremely despondent about. 

Untangling the Many Threads of the Sarla Gupta Judgment

A Three Justices' Bench of the Supreme Court rendered its judgment in Sarla Gupta & Anr. v. Directorate of Enforcement [2025 INSC 645 (Sarla Gupta)]. The Court was hearing different appeals together, which presented somewhat similar issues that could loosely be grouped under the category of obligations on prosecuting agencies to disclose the material gathered during an investigation to the accused, in context of cases under the Prevention of Money Laundering Act 2002 ['PMLA']. 

While the judgment itself does not categorise issues, I think it is helpful if we are to try and make sense of its conclusions [summarised at Paragraph 55]. An attempt at the issues is as follows:

1. Whether the accused has a right of disclosure to seek copies of documents seized during searches done under the PMLA by the Enforcement Directorate? 

1A. If so, at what stage can the right be enforced and the documents disclosed / shared with the accused?

2. Whether the accused has a right of disclosure to seek copies of the documents filed by the prosecuting agency in support of its complaint under the PMLA ('relied upon documents')?

2A. If so, at what stage can the right be enforced and the relied upon documents disclosed / shared with the accused?

3. Whether the accused has a right of disclosure to seek copies of the documents seized but not placed in support of its complaint under PMLA by the prosecuting agency ('un-relied upon documents')?

3A. If so, at what stage can the right be enforced and the un-relied upon documents disclosed / shared with the accused?

Issues 1 and 1A

The first set of issues — 1 and 1A — were the easiest to answer for the Court. The PMLA itself provides that in event of a search and seizure, a list of seized items must be supplied to the person concerned, and the person can apply to get a copy of the documents when the authority concerned has decided to retain them [Sections 17 to 21]. So, the answer to issue 1 was 'yes', and the answer to 1A was that the person can apply to get copies after a decision is made to retain them for longer than thirty days.

Issues 2 and 2A

The next set of issues — 2 and 2A — are slightly more complicated because of how the PMLA and the general procedural law under the Criminal Procedure Code 1973 ['Cr.P.C.'] — now  the Bharatiya Nagarik Suraksha Sanhita 2023 ['BNSS'] — operate. The Cr.P.C. applies to PMLA prosecutions, but where there is a conflict between the two laws, the PMLA governs. In this realm of supplying complaints etc., there is no specific clause within the PMLA, taking us back to the Cr.P.C. [clarified within Sarla Gupta as well]. 

Indian criminal law envisages prosecutions can start either by a state agency investigating facts and bringing a case, or by an aggrieved party filing a case basis material it has in its possession to prove wrongdoing. Ordinarily, the state agency tasked with investigating cases is the police, and police files what is called a 'police report'. The disclosure rules for material filed with a police report are fairly clear: material which the agency is relying upon to support its case, has to be supplied [Sections 173(5), 207]. 

When it comes to a 'complaint', the Cr.P.C. stipulates that if a court finds that a person ought to face trial upon the allegations in a complaint, it must ensure a copy of the complaint is given to an accused. But, there is no corresponding right of disclosure availing to an accused here, as it is with cases launched pursuant to a police report. The limited exception, textually speaking, is a requirement for a magistrate's court to ensure that materials filed with a complaint are furnished to the accused in cases where the prosecution is one which must be conducted before a sessions court [Sections 204, 208]. I say textually, because courts have read in a similar disclosure requirement in cases launched on complaints for some time now.

This background is necessary to understand issues 2 and 2A. Even though prosecutions under PMLA are lodged after investigations by a state agency — the Enforcement Directorate — the document launching the prosecution is styled as a 'complaint' and not a police report [Section 45 PMLA]. The Cr.P.C., as we have seen, confers clear rights in cases launched on a police report, but is not so strongly worded when it comes to complaints. What this reflects is that, unlike issues 1 and 1A, here the Court in Sarla Gupta had some options on how to proceed. 

How has it answered the issues framed above? On issue 2, the Court has taken two steps. First, it clarifies that when a person is brought to court to face trial in a PMLA case, they must be provided with not just the complaint but also the materials being relied upon in support thereof [Paragraph 25]. This was held necessary owing to the general Cr.P.C. rule on supplying copies of complaints to accused persons. In other words, the Court recognised an obligation on part of the agency to supply a copy of the material it proposes to rely upon in support of its case. 

What about the right of the accused within the statute to demand for such relied upon material? Here, recall, that the rights-language is far clearer for police reports than for complaints. But since the PMLA involves no assignment of a case from a magistrate to a sessions court, the Court in Sarla Gupta noted that the Cr.P.C. complaints' clause on disclosure would not strictly apply to the PMLA [Paragraph 30]. 

It could have deemed the 'complaint' filed by the Enforcement Directorate as a 'police report' or adopted some other means to hold that the rules of Section 207 Cr.P.C. applied to PMLA complaints. If it would have done so, the Court would have thrown open the doors to topple the investigative scheme of the PMLA, because it hinges upon treating these complaints by state agencies as not being akin to police reports. There are many investigative powers that flow to the Enforcement Directorate (and other agencies) from simply not being labelled 'police'. Any ruling that dents this scheme would be extremely troubling for central investigative agencies which file 'complaints'. 

The Court was certainly aware of this position, which had been restated a few months ago by a bench comprising the Chief Justice. As a result, rather than apply either Section 207 or Section 208 by twisting their language, the Supreme Court in Sarla Gupta conveniently holds that the 'principles' of both clauses apply to the PMLA context, and all relied upon materials should be supplied [Paragraph 30]. 

Thus, the answer to issue 2 is a 'yes', but it is more an obligation on part of the agency and court rather than an issue that the accused must chase by enforcing their rights. There is a right too, just to be clear, and issue 2A stands answered by telling us that this right can be enforced from the time that an accused is first summoned to court to face a trial under the PMLA. If any deficiency exists in terms of material that the agency relied upon, the accused can seek copies, and arguments on the aspect of charge should not start till this supply of material is complete.

Issues 3 and 3A

Which then brings us to the last issues of the lot — issue 3 and 3A. That an accused has a right to seek the copy of un-relied upon documents has been an unequivocally clear position now for quite some time, and the Court merely reiterated precedent to stress upon this aspect [Paragraphs 31-33]. Issue 3A is where the controversy existed — at what stage would this right to get un-relied upon documents trigger? This section of the judgment is couched with qualifiers and it is safer to first set out the general position that the Court has identified, before delving into the devilish details:

• There is a clear right to be supplied with a list of the un-relied upon material, and this must be given along with the entire copy of the PMLA complaint i.e. prior to arguments on charge [Paragraph 41].
• There is no clear right to seek copies of un-relied upon material at the time of arguments on charge [Paragraphs 33-41].
• There is a clear right to seek copies of un-relied upon material during defence evidence by moving an appropriate application for summoning such records [Paragraphs 42-51].
• There is a clear right to seek copies of un-relied upon material during bail hearings by moving an appropriate application, and the extent of the right depends upon the stage at which the investigation is [Paragraphs 52-54].

Out of these four conclusions, the first brooks no exception nor generates any controversy. The Supreme Court has endorsed this approach of directing the agency to prepare a list of un-relied upon materials that must be supplied as part of a set of guidelines for better functioning of trials issued in 2021. Sarla Gupta has extended that logic to the PMLA as well. 

The 2021 judgment did not specifically say anything about the stage at which the accused can seek copies of the un-relied materials cited by an agency. This aspect was touched upon in two subsequent decisions — Manoj [2022 INSC 606] and Ponnusamy [2022 INSC 1177]. Out of the two, Manoj did not specifically mention a stage either and generally observed that disclosure of the un-relied upon materials was necessary to secure a fair trial. It was only Ponnusamy which specifically dealt with this exact issue — the two opinions from the bench diverged on precisely this aspect of a right to un-relied upon documents and the stage at which it would trigger. 

Curiously though, Ponnusamy is not mentioned anywhere within Sarla Gupta. This is a problem because it would seem that Sarla Gupta has diverged from the view taken in Ponnusamy. Both Ponnusamy and Sarla Gupta hold that there is no right to seek copies of un-relied upon material at the stage of charge. But where Ponnusamy held that the right would trigger at trial and that a court could consider the relevance of the material sought to be summoned while considering the request, Sarla Gupta has specifically linked the right to defence evidence, not trial generally, and has limited the scope of discretion vesting with a judge to refuse a request for summoning the materials (permitting it only on grounds of delay). 

It is unclear why Sarla Gupta specifically linked the prospect of seeking un-relied upon materials to defence evidence, and not adopted the view taken in Ponnusamy. The Supreme Court's logic in stressing upon the existence of a right for accused persons is that there is a reverse burden operating after charge is framed under the PMLA. In that case, why specifically link the right to only defence evidence? No reasons are offered to explain why an accused should remain quiet throughout prosecution evidence when having this material would enable a more effective cross-examination of witnesses at the relevant stage. Instead, the Court proposes a tortuous route, suggesting that an accused after applying for this material and obtaining it can then apply for recalling of witnesses to cross-examine them on this material. 

This course of action does not commend itself on logical grounds as mentioned above, nor does it commend itself on grounds of efficiency, economy, or strategy. Accused persons will have to adopt an artificial posture and work out two potential cross-examinations of the same witness. If a second cross-examination yields new incriminatory evidence from the witness, that would necessitate a trial court to put these statements to an accused and record a fresh statement under Section 313 Cr.P.C. These are only surface-level problems, mind you, and I am sure that more emerge the moment that lawyers and courts begin to try and apply the rules of Sarla Gupta to the facts of actual cases.    

We are left with the second and fourth conclusions then — no general right to copies of un-relied material at charge, but a right to apply for such material during bail. Although Ponnusamy is not cited anywhere within Sarla Gupta, it has followed the holding in Ponnusamy that there is no right to seek un-relied materials at the stage of charge by moving applications under Section 91 Cr.P.C. It also relies upon another earlier Three Justices' Bench decision in this context, Debendra Nath Padhi, which held that the hearing at charge must be confined to the record of the case, and this record consisted only of material that the prosecution brought forth. But while doing so Sarla Gupta has not slammed the door shut upon potential requests for un-relied upon material at this stage since it qualifies its position by repeatedly stating that 'ordinarily' an accused would not have the right to apply under Section before trial for copies of such materials [Paragraphs 33, 37, 49]. In the right facts, then, one may still have a chance to get un-relied materials prior to framing charge.

What complicates matters a great deal further is the fourth conclusion — that an accused has a right to apply for un-relied upon material during bail hearings. In this section of the judgment, the Court has moved entirely free of any past precedent and taken a view that fairness demands that the accused must have this right because bail under the PMLA places an onus upon the accused to show that no offence is made out. To ensure a fair opportunity for an accused to discharge this burden, the Court felt it was necessary to have a right to seek un-relied upon material which the agency might have.

This section greatly complicates the task of making sense of Sarla Gupta. Firstly, because it further undermines the already logically precarious position to allow a right to apply for un-relied upon material at the stage of defence evidence alone, since the reverse burden operates at the time the trial begins. Secondly, because if the reverse burden on an accused is such a critical hit to fairness, then why should an accused have to suffer framing charge on the basis of potentially unfair prosecutorial conduct and then get a valuable right to expose this during trial? Thirdly, and finally, because ordinarily bail will be a stage that comes before charge is framed, and if a court ends up viewing the un-relied material as being relevant to deciding the bail application it will undoubtedly end up thinking it is relevant to decide the point of charge as well. This creates a weird and inconsistent position where persons in custody may have greater opportunities to fair hearings at the stage of charge than those who are never arrested during investigation.

Sarla Gupta cites many past decisions of the Supreme Court on this issue of disclosing un-relied upon materials by prosecuting agencies. A unifying theme through all those past decisions was clearsighted acknowledgment that there was a need for a right of disclosure to mitigate against the very real possibility of unfair suppression by prosecuting agencies of material gathered in an investigation but of an exculpatory nature. But in Sarla Gupta the issue of suppression is nothing but an elephant in the room. Throughout its 86 pages, not once does Sarla Gupta mention this aspect of possible suppression and the unfair prejudice it causes, even though it is clearly the driving force behind the Court conferring a right to un-relied upon material at the bail stage. A full and frontal acknowledgment of this issue being one of the guiding reasons to confer a right of disclosure may well have yielded different configurations of how the right operates.

Conclusion

To conclude, then, One is left feeling that Sarla Gupta is yet another one of those judgments in which a bench of the Supreme Court is torn between adopting fairness as a yardstick for reading rules of criminal procedure, but is unable to adopt this yardstick consistently when faced with the ghost past judicial precedent that has taken a restrictive and unfairly textual view of the statute. Even so, the judgment is bound to be immensely relevant not just for PMLA cases, but criminal trials generally, and criminal trials with reverse onus clauses more specifically. One cannot help escape the feeling that this is not the end of the matter, but only the start of new complexities in the law on disclosure obligations and rights of accused persons.