Issue 2 Whether the trial in absentia adhered to the provisions and

principles of due process?

It is humbly submitted before this honourable high court that the trial in absentia done by the
court of session in the present matter is in adherence with the provisions and principles of due
process, as Trials in Absentia Mechanism used to Uphold the Right to Speedy Trial, accused
was given adequate notice and opportunity to appear, Right to Speedy Trial, The Trial in
Absentia Was Conducted Under Clear Statutory Authority and Judicial Safeguards.

1. Trial in Absentia Mechanism used to uphold the Right to Speedy trial

1. Due process of law ensures trials are just, fair, and reasonable. While the Indian criminal
justice system guarantees accused persons the right to present their case and be heard, courts
may proceed with trials in absentia under specific circumstances. This occurs when the
accused effectively waives their right to be present by escaping custody, unlawfully absenting
themselves in breach of bail conditions, or without good reason failing to attend proceedings.
Such provisions balance the demands of justice with procedural fairness, ensuring that
accused persons cannot deliberately obstruct the judicial process through their absence.

2. In Hussainara Khatoon v. Home Secretary, Supreme Court had said that "Article 21
confers a fundamental right on every person not to be deprived of his life or liberty except
according to procedure established by law; that such procedure is not some semblance of a
procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows,
without doubt, the right to speedy trial. It was also observed that on procedure which does not
ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall
foul of Art. 21".

3. In Bhim Singh v. Union of India (2015) 13 SCC 603, it was observed that ‘the Central
Government must take steps in consultation with the State Governments in fast tracking all
types of criminal cases so that criminal justice is delivered timely and expeditiously” and
further stated that” The right of the accused to be present and be heard during criminal
trial, which is the most important facet of fair trial, is not absolute and is subject to the
condition that the accused is required to co-operate during investigation, inquiry and trial.
It cannot be made a pretext to abscond, delay and ultimately frustrate the criminal
adjudication”.
4. Again in Imtiyaz Ahmad v. State of U.P (2012) 2 SCC 688 it was observed that long delay
has the effect of blatant violation of rule of law and adverse impact on access to justice which
is a fundamental right.

5. Gautam Kumar Chaudhary, ex-judge of Jharkhand High Court, under heading of

"Absenteeism from criminal justice: A plea for reform" noted that inordinate delays not only
cause hardship to the parties, loss of critical evidence and compelling the informant/victim to
succumb midway, but they also result in the loss of public confidence in the criminal justice
system.

6. In Abhishek Kumar @Son v. State of Bihar, the court held that "we accordingly find, in
the ultimate that on the weight of judicial authority absconding on bail during a trial amounts
to a waiver by the accused to his right to be present at trial….We hold that the trial Judge had
the discretion to continue the trial in the absence of the accused."

2. Accused was given adequate notice and opportunity to appear

For a meaningful realisation of the right to defence, the presence of the

accused becomes vital. It is, therefore, mandatory for the appellate court
to issue notice and hear the other side before passing the order condoning
the delay in filing the appeal. A person in whose favour right accrued must
be given reasonable opportunity of hearing in the limitation matter. In the
absence of a notice of the kind and such reasonable opportunity, the order
passed against the person in absentia becomes wholly vitiated. Thus it is
but essential that a party should be put on notice of the case before any
adverse order is passed against him. This is one of the most important
principles of natural justice. For that purpose section 355 and 356 along
with section 84
3. The Trial in Absentia Was Conducted Under Clear Statutory Authority
and Judicial Safeguards.

Trial in absentia conducted by the session court and the investigation done under this follows
clear statutory authority and judicial safeguards

The introduction of the BNSS marks a significant shift by formally

incorporating trial in absentia for “proclaimed offenders”—
individuals who have deliberately evaded trial and have no
immediate prospect of arrest

Section 84 of the BNSS defines a proclaimed offender as someone

who has absconded to evade trial and against whom there is no
immediate prospect of arrest. Only individuals classified as
proclaimed offenders are subject to trial in absentia.

Issue 3 Whether the lower court’s application of substantive and

procedural laws in the given factual context was correct?

It is humbly submitted before this honourable high court that

the lower court’s application of substantive and procedural
laws in the given moot preposition is not correct .thwen
contention is based on the subissues(1) lowercourt erred in
application

Applicability of section 376

offences more than one committed by the same persons could be tried at
one trial, if they can be held to be in one series of acts, so as to form
the same transaction.
 "the circumstances of a case indicating proximity of time, unity or proximity of place,
continuity of action and community of purpose or design are the factors for deciding
whether certain acts form parts of the same transaction or not." Mohan Baitha And
Others v. State Of Bihar And Another, 2001 CRIMES SC 2 83 (Mar 21, 2001)

Substantive law imposing liability of penalty cannot be altered to the prejudice of the person
supposed to be guilty with retrospective effect {Rao Shiv Bhadur Singh v. State of Vindhya
Pradesh, AIR 1953 SC 394}

Any person arrested without a warrant must be taken before the Magistrate having jurisdiction in
the case within 24 hours. {Ramgulam v. State of Bihar (2005) (1) East Cri C 133(Pat)}

No police officer shall detain in custody a person arrested without a warrant for a more extended
period than under all the circumstances of the case is reasonable. Such period shall not, in the
absence of a particular order of a magistrate under S. 167, exceed twenty-four hours, exclusive
of the time necessary for the journey from the place of arrest to the Magistrate’s Court. While
considering whether the protection of Articles 22 (1) and (2)extends to both categories of
arrests, the Court concluded that arrests without warrants issued by a Court call for more
excellent protection than arrests under such warrants.{Bhim Singh v.State of J. & K}

Trial court error in application of procedural laws

IN APPLICATION OF SECTION 356

1. In the present matter, the trial court conducted the proceedings under trial in absentia
without adhering to the provisions of Section 356(2), which states: "The Court shall ensure
that the following procedure has been complied with before proceeding under sub-section (1),
namely:
(i) issuance of two consecutive warrants of arrest within the interval of at least thirty days; (ii)
publish in a national or local daily newspaper circulating in the place of his last known
address of residence, requiring the proclaimed offender to appear before the Court for trial
and informing him that in case he fails to appear within thirty days from the date of such
publication, the trial shall commence in his absence;
(iii) inform his relative or friend, if any, about the commencement of the trial; and
(iv) affix information about the commencement of the trial on some conspicuous part of the
house or homestead in which such person ordinarily resides and display in the police station
of the district of his last known address of residence."
in the present matter the court doesn’t take any step in following (ii),(iii),(iv) of the said
section.

2. As established in the Zahira Habibulla H. Sheikh case, "if the accused isn't present to give
defense, it is the fault of the court for them not being there. This goes in opposition to a fair
trial". The procedural requirements under Section 356(2) are safeguards designed to protect
the fundamental right to a fair trial.

3. In Harkirat singh v. state of Punjab, the Court reiterated the rule of strict
interpretation concerning penal statutes. It emphasized that such statutes should
be construed strictly, and if there is any reasonable doubt or ambiguity, the
benefit should be given to the accused.”

In application of section 187 of JNSS

1. According to section 187(3), the Magistrate may authorize the detention of the accused
person beyond the period of fifteen days if satisfied that adequate grounds exist for doing so.
However, no Magistrate shall authorize the detention of the accused person in custody under
this sub-section for a total period exceeding:

(i) ninety days, where the investigation relates to an offence punishable with death,
imprisonment for life, or imprisonment for a term of ten years or more.

In the present matter, there is no mention in the factual matrix or submission by the learned
counsel regarding what adequate grounds the magistrate relied upon to grant extended police
custody to the arrested person.

In Chaganti Satyanarayana and others v. State of Andhra Pradesh, [1986] 3 S.C.C.141,

the court held that "remand to police custody cannot be beyond the period of fifteen
days and the further remand must be to judicial custody." Although the new procedural
law provides for extension of police custody beyond 15 days, the lawmakers have given
specific instructions for doing so and mandated essential reasons to justify such extension.
The magistrate's non-adherence to these clauses demonstrates the trial court's bias against the
accused from the very beginning, thus prejudicing his case.

2. As per section 187(7), a Magistrate authorizing detention in police custody under this
section shall record his reasons for doing so.

(8) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward
a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.
 In this present matter, the Magistrate did not comply with clauses 7 and 8 of the said section,
as neither were specified reasons provided by the Magistrate to extend the police custody, nor
was any forwarding of a copy of the said reasons to the Chief Judicial Magistrate evident
according to the factual matrix.

3. According to section 187(4), "No Magistrate shall authorize detention of the accused in
custody of the police under this section unless the accused is produced before him in person
for the first time and subsequently every time till the accused remains in the custody of the
police." The court must interpret the relevance of said clause. The Supreme Court in Sanjeev
Kumar v. State held that criminal statutes must be interpreted strictly according to their
language, object, and legislative intent. These lines put emphasis on the production of the
accused within 24 hours as per section 58 of BNSS. In the present matter, police produced the
accused after the lapse of 24 hours, but the Magistrate did not take this breach into account
before providing 15 days of police custody.

Subsequent production by the police before the Magistrate as per the said clause also denotes
that the Magistrate should take into consideration whether any torture was inflicted on the
accused. However, in the present matter, as per the factual matrix, the accused has gone
through extensive custodial torture, but the Magistrate failed to take this into consideration
and extended the custody for 90 days.

In application of section 231 of BNSS

2. Non-compliance with Section 207 JNSS (CrPC)

The lower court failed to ensure compliance with Section 231 JNSS, which mandates
furnishing of copies of all documents to the accused. In the appellant's absence, these should
have been provided to his advocate.

In V.K. Sasikala v. State (2012) 9 SCC 771, the Supreme Court emphasized that “At the
time of the framing of the charge the court is required to satisfy itself that all papers,
documents and statements required to be furnished to the accused under Section 207 Cr.P.C.
have been so furnished”. It is pertinent to note that Section 207 of the Code of Criminal
Procedure corresponds to Section 231 of the BNSS.