Under the Code of Criminal Procedure, an absconding accused could freeze a prosecution almost indefinitely: the file waited, witnesses aged, and the most the court could do was record evidence under Section 299 CrPC for future use. The Bharatiya Nagarik Suraksha Sanhita, 2023 breaks with that position. Section 356 empowers the court to hold the inquiry and trial of a proclaimed offender in his absence and to pronounce judgment — treating deliberate abscondence, after due notice, as a waiver of the right to be present. The provision is among the sharpest procedural innovations of the new code, and both its machinery and its safeguards deserve close attention from prosecutors, defence counsel and anyone who advises clients with pending warrants.
Why the provision exists
Trials collapse when accused persons vanish. Split-up charge-sheets, repeated proclamations and dormant files have long been a fixture of the district courts, and the only statutory answer — recording evidence in the absconder\'s absence under Section 299 CrPC (now Section 335 BNSS) for use if he was ever caught — preserved evidence without producing an outcome. Section 356 converts the absconder\'s calculated absence into a waiver: the State proves its case, the court decides it, and the judgment exists whether or not the accused ever surfaces.
The preconditions, in sequence
1. Proclamation
The accused must stand declared a proclaimed offender under Section 84 BNSS, with the proclamation machinery — including attachment of property where ordered — already run.
2. Ninety days from charge
The court may proceed only after ninety days have lapsed from the framing of the charge, and only upon recording that there is no immediate prospect of arrest.
3. The notice lattice
Before commencing, the court ensures: two consecutive arrest warrants at an interval of at least thirty days; publication in a national or local daily circulating at the accused\'s last known address, giving thirty days to appear; information to relatives or friends; and affixation of the information at the residence and the local police station.
4. Counsel and recording
An advocate is appointed at State expense if the accused is unrepresented, and the proceedings are recorded by audio-video electronic means.
The sequence is not decorative. Each step builds the record that the absence is informed and voluntary — the foundation on which the waiver theory, and any later challenge to the conviction, will be tested.
Evidence, appearance and finality
Depositions of prosecution witnesses recorded in the absence of the accused can be read in evidence. If the accused is arrested or appears during the trial, the court may permit cross-examination of witnesses already examined, where the interest of justice requires. But the provision closes the obvious escape route: an accused who absconds after the trial has commenced cannot reset it by turning up for the judgment — the proceedings continue and the decision binds him.
The appellate consequences are the provision\'s hardest edge. No appeal lies unless the proclaimed offender presents himself before the court of appeal, and no appeal against conviction lies after three years from the judgment. An absconder who waits out the storm therefore risks losing the appellate remedy altogether, holding only the extraordinary jurisdictions as a last resort.
Practical counsel
| Position | What Section 356 means for you |
|---|---|
| Client with open warrants or a proclamation | The cost of staying away has changed in kind, not degree: conviction, sentence and attachment can now all crystallise in absence. Surrender-and-bail strategy, or anticipatory protection where available, should be evaluated immediately. |
| Complainant / prosecution | The provision is a tool against attrition — but its judgments are only as strong as the notice record. Insist that every step of sub-section (2) is documented before the trial opens. |
| Defence counsel appointed by the court | The State-expense advocate is not a formality; the audio-video record will show whether the defence was real. Cross-examination and legal submissions must be conducted as in any contested trial. |
Section 356 applies of its own force to proclaimed offenders, and the government may extend its scheme to other absconders by notification. As the first cohort of in-absentia trials moves through the system, the provision\'s safeguards — and the seriousness with which courts enforce them — will determine whether it survives constitutional scrutiny as a fair-trial-compatible answer to abscondence. What is already certain is that advising a client to simply disappear has never carried a higher price.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
Who can be tried in absentia under Section 356?
A person declared a proclaimed offender who has absconded to evade trial, where the court finds there is no immediate prospect of arresting him. The trial cannot commence until ninety days have passed from the framing of the charge, and only after the notice machinery — consecutive warrants, newspaper publication, information to relatives and affixation at the residence and police station — has been exhausted.
Does the absent accused get a lawyer?
Yes. If the accused is not represented, the court must appoint an advocate for his defence at the expense of the State. The proceedings are also to be recorded by audio-video electronic means, preserving the record for any later challenge.
What happens if the accused is arrested or appears during or after the trial?
If he appears or is arrested while the trial is running, the court may, in the interest of justice, allow him to cross-examine prosecution witnesses whose depositions are on record. But where an accused voluntarily absents himself after the trial has commenced, the trial continues and the judgment stands even if he appears at its conclusion.
Can the convicted absconder appeal?
Only within strict limits: no appeal lies against the judgment unless the proclaimed offender presents himself before the appellate court, and no appeal against conviction lies after three years from the date of the judgment. Abscondence therefore has a permanent procedural price.