The Jurisprudence Of Absence: A Comprehensive Legal And Constitutional Analysis Of Trial In Absentia Under Section 356 Of The Bharatiya Nagarik Suraksha Sanhita, 2023
- IJLLR Journal
- Feb 5
- 1 min read
Aishwarya Vucha, ICFAI Law School Hyderabad (Alumna) Advocate Telangana High Court
ABSTRACT
The enactment of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a paradigm shift in Indian criminal jurisprudence, moving from an accused-centric model to a victim-centric "Crime Control" framework. At the helm of this transformation is Section 356, which institutionalizes Trial in Absentia for proclaimed offenders—a radical departure from the audi alteram partem principles of the Code of Criminal Procedure, 1973.
This research paper provides a comprehensive constitutional and operational analysis of Section 356. It dissects the statutory mechanics of the provision and its interplay with the Fugitive Economic Offenders Act, 2018, arguing that the "Doctrine of Deemed Waiver" is constitutionally better understood as "Forfeiture by Misconduct," a distinction that strengthens the state’s justification against Article 21 challenges. The paper rigorously examines the retrospective applicability of the law to pre-2024 FIRs, contrasting the Krishnan Joshi (Rajasthan HC) and Chowgule (Bombay HC) doctrines, while highlighting the "Executive Bypass" utilized by states like Mizoram.
Crucially, the paper identifies a strategic "Extradition Trap": the lack of an automatic retrial right and the three-year appeal limitation may inadvertently block the extradition of fugitives from the UK and Europe under the Bertino standard. To resolve this, the paper proposes a "Middle Path" of Virtual Presence, arguing that technology can bridge the gap between domestic speed and international due process. Through a comparative analysis of the US, UK, France, and Bangladesh, this study concludes that while Section 356 is a necessary weapon against fugitives, its current architecture requires urgent judicial calibration to prevent it from becoming a procedural dead- end.
