Section 356 BNSS: trial in absentia of proclaimed offenders and the constitutional question

The IPC / CrPC framework had, across its history, addressed the question of proclaimed offenders through Sections 82 to 86 of the CrPC. Where a person against whom a warrant had been issued was absconding or concealing themselves to evade arrest, the court could issue a proclamation requiring appearance within thirty days; if the person did not appear, the court could attach the absconder's property. The framework, however, did not provide for the trial itself to proceed in the absence of the accused — the substantive determination of guilt or innocence was reserved for the moment when the accused could be produced in court.

The BNSS framework — replacing the CrPC on 1 July 2024 — introduces, for the first time in the general criminal-procedure framework, a structured architecture for trial in absentia of proclaimed offenders. The provision sits at §Section 356 BNSS. The architecture is a substantial doctrinal innovation, and the constitutional question it raises is one of the most-discussed issues in the early BNSS jurisprudence.

This piece is a contextual report on the section, the procedural architecture, and the constitutional engagement that is developing around it.

The framework: what Section 356 does

Section 356(1) BNSS provides that where a person is declared a proclaimed offender — that is, has absconded to evade trial and there is no immediate prospect of arresting such person — the absconding shall be deemed to operate as a waiver of the right to be present and tried in person. The court may proceed with the trial in the absence of the proclaimed offender, applying the substantive criminal-procedure framework as it would in a presence-based trial.

The architecture is buffered with substantive procedural safeguards intended to address the constitutional concerns the in-absentia framework raises.

The 90-day mandatory waiting period

The first safeguard is a 90-day mandatory wait from the date of framing of charge before the trial in absentia can commence. The waiting period operationalises the framework's commitment to providing the accused a final structured opportunity to appear before the substantive trial proceeds.

Two consecutive arrest warrants

The framework requires the court to issue two consecutive warrants of arrest at an interval of at least 30 days within the waiting period. The dual-warrant requirement is intended to ensure that the procedural machinery for arrest has been exhausted before the absentia trial commences.

Paper publication

The framework requires paper publication in a national or local daily newspaper directing the proclaimed offender to appear before the court within 30 days. The publication is intended to provide constructive notice to the accused — particularly relevant where the accused is alleged to be outside the jurisdiction.

State-funded counsel

The fourth safeguard is that where the absconding accused does not have legal representation, the court must provide an advocate for the defence at the expense of the State. The architecture is intended to ensure that, even in the accused's absence, the substantive defences are articulated.

Documentation of compliance

The framework requires the court to document, in the trial record, that each of the procedural safeguards has been complied with. The documentation is intended to support the framework's defensibility against subsequent constitutional challenge.

The constitutional question

The constitutional engagement with Section 356 BNSS turns on a foundational tension. The right to fair trial under Article 21 — the right to be present, to confront witnesses, to participate in the defence, to instruct counsel — has been doctrinally understood as the cornerstone of Indian criminal-procedure constitutional protection. Whether the right can be waived — and if so, by what conduct, with what procedural architecture, and to what extent — is the substantive question Section 356 raises.

The waiver framework

The Section 356 architecture rests on a deemed-waiver theory: the proclaimed offender's absconding constitutes constructive waiver of the right to be present and tried in person. The doctrinal premise is that constitutional rights, while substantively foundational, can be waived by conduct of the rights-holder where the framework's procedural safeguards have been complied with.

The premise has substantial doctrinal support in other contexts. The right to silence (Article 20(3)) can be waived by voluntary cooperation with investigation. The right to counsel can be waived by competent decision. The substantive question is whether the absconding-as-waiver theory — particularly where the absconding may be a response to legitimate fear of harm rather than evasion of trial — adequately satisfies the constitutional architecture.

The reasonable-procedure framing

The alternative analytical framing is that Section 356 is not a waiver framework but a reasonable-procedure framework: the constitutional protection of personal liberty under Article 21 requires that the procedure depriving liberty be just, fair and reasonable; the Section 356 architecture, with its safeguards, satisfies this constitutional standard.

The framing engages the post-Maneka Gandhi doctrine on procedural fairness under Article 21. The substantive question is whether the safeguards — 90-day wait, two warrants, paper publication, State-funded counsel — together constitute the substantive reasonableness the constitutional framework requires.

The international comparative

International criminal-procedure frameworks have, with substantial variation, accommodated trial in absentia in defined circumstances. The European Court of Human Rights has, across multiple dispositions, engaged with trial in absentia under Article 6 of the European Convention on Human Rights. The United States has, in defined circumstances (particularly under federal Rule 43), permitted trial in absentia. The International Criminal Tribunal frameworks for Yugoslavia and Rwanda have engaged the question in war-crimes contexts.

The comparative material is doctrinally useful but not determinative. The Indian constitutional framework — with its specific architecture of Article 21 and the post-Maneka expansion — supplies the analytical posture the framework's constitutional engagement requires.

The Allahabad High Court's early engagement

The Allahabad High Court has, in one of the early substantive BNSS-era engagements with the section, addressed the procedural architecture for trial in absentia. The High Court engaged with how courts should sequence the procedural safeguards, what documentation is required, and how the framework's constitutional posture should be calibrated.

The substantive direction of the engagement — to be developed through subsequent decisions across multiple High Courts and eventually the Supreme Court — has been to read the section's procedural safeguards as substantive constitutional protections, not as procedural formalities. The framework's defensibility, on this reading, depends on the meaningful operationalisation of each safeguard.

For practitioners, the implication is operational. Where a court intends to proceed with trial in absentia, the procedural safeguards must be substantively observed — not merely paper-recorded. The documentation of compliance must engage the substance of each safeguard.

The absconding shall be deemed to operate as a waiver of the right to be present — subject to a 90-day wait, two arrest warrants, paper publication, and State-funded counsel for the absent accused.

What practitioners take from the framework

For practitioners in different roles, the section's operational implications differ.

For prosecutorial counsel

The framework opens substantive prosecution options that the CrPC architecture had not provided. Cases that had been effectively suspended pending arrest can, where the procedural conditions are met, be brought to substantive trial. The prosecutorial discipline:

• Identification of cases where the framework's preconditions are satisfied — proclaimed offender status, sustained absconding, no immediate arrest prospect.
• Engagement with the procedural architecture — ensuring that the 90-day wait, two warrants, paper publication, and counsel-engagement requirements are substantively complied with.
• Documentation of compliance — supporting the framework's defensibility against constitutional challenge.

For defence counsel

Defence engagement with the framework operates in two distinct contexts.

Where the defence represents the proclaimed offender (after eventual arrest or appearance). Subsequent challenge to a trial in absentia disposition engages the substantive question of whether the framework's safeguards were observed. The constitutional defence — that the framework's specific application failed the procedural standard — supports challenge to the disposition.

Where the defence represents the State-funded counsel under Section 356. The role engages substantial professional and ethical considerations. The substantive responsibility — to articulate the defences that would have been available if the accused had been present — must be discharged on the basis of the available material, even where instructions are not directly available from the absent accused.

For the trial bench

The framework's substantive operationalisation requires the trial court to engage each procedural safeguard substantively. The mechanical recording of compliance does not satisfy the constitutional architecture; the bench's substantive engagement with each step is what supports the framework's constitutional defensibility.

The bench should be cautious about commencing the in-absentia trial before the procedural architecture is substantively exhausted. The framework's premise is that the absconding represents waiver only where the procedural architecture has provided meaningful opportunities for appearance — and where the accused has nonetheless evaded the framework.

What the framework does not address

It is worth being precise about the boundary.

• The framework addresses trial in absentia. The framework's application to other stages — bail proceedings, anticipatory bail, applications during the investigation stage — engages different considerations.
• The framework does not address the position where the accused appears after the in-absentia trial has commenced or concluded. The procedural architecture for reopening or revisiting the trial in such circumstances has not been articulated in the statutory framework.
• The framework does not address the enforcement of an in-absentia conviction in cases where the accused is subsequently located in a foreign jurisdiction. The extradition framework engages separate considerations on the question of whether the foreign jurisdiction will surrender on an in-absentia conviction.

These boundary questions are likely to be developed in subsequent jurisprudence.

The likely doctrinal trajectory

The constitutional engagement with Section 356 BNSS is in early development. The probable trajectory:

• High Court engagement — Multiple High Courts will engage the section's procedural and constitutional dimensions across the next several years. The doctrinal architecture will develop iteratively.
• Supreme Court engagement — Where significant constitutional questions are raised, matters will reach the Supreme Court. A Constitution Bench engagement with the section's constitutional foundation is foreseeable.
• Legislative refinement — Where the constitutional engagement identifies specific weaknesses in the framework, legislative refinement may follow.

For practitioners, the framework should be engaged on its current statutory terms while tracking the doctrinal development. Where specific applications produce constitutionally problematic outcomes, the framework's constitutional defensibility is the appropriate engagement.

The bottom line

Section 356 BNSS introduces, for the first time in the Indian general criminal-procedure framework, a structured architecture for trial in absentia of proclaimed offenders. The framework is buffered with substantial procedural safeguards — 90-day wait, two warrants, paper publication, State-funded counsel — that are intended to address the substantive constitutional question the framework raises. Whether the framework satisfies the Article 21 protection of fair trial — and the procedural-fairness requirement the post-Maneka doctrine imposes — is the central constitutional question the bar will be engaging in the years ahead. The framework's defensibility depends on the substantive operationalisation of each safeguard; the mechanical recording of compliance will not satisfy the constitutional architecture. For practitioners on either side of the trial, the framework requires sustained engagement with the procedural and constitutional dimensions, and a willingness to test the framework's specific applications against the constitutional standard.

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Verify against the operative text of Section 356 BNSS. The constitutional and procedural engagement with the section is developing through early dispositions across multiple High Courts; track subsequent decisions for analytical refinements.