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 realization of the right to defense, the presence of the accused is vital. This
reflects one of the most important principles of natural justice - that a party must be put on
notice of the case before any adverse order is passed against them. Without proper notice and
reasonable opportunity to be heard, any order passed against a person in absentia becomes
wholly vitiated.

However, this principle should not allow accused persons to obstruct justice by absconding.
In Abhishek kumar@sin v. State of bihar “When an accused absconds, the criminal
proceedings effectively enter limbo - charges cannot be framed, evidence cannot be recorded,
statements under Section 313 Cr.P.C. cannot be taken, defense evidence cannot be presented,
and judgment cannot be delivered”. To address this issue, Sections 355, 356, and 84 provide
a procedural framework for conducting trials in absentia. These provisions ensure that while
proper notice and opportunity are provided to the accused to present their side, the criminal
justice system is not indefinitely hindered. The trial court must adhere to these provisions to
strike the appropriate balance between the rights of the accused and the imperative of justice
being served without undue delay.

According to Section 84(4) of the Bharatiya Nyaya Sanhita, "Where a proclamation

published under sub-section (1) is in respect of a person accused of an offence which is made
punishable with imprisonment of ten years or more, or imprisonment for life or with death
under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force,
and such person fails to appear at the specified place and time required by the proclamation,
the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed
offender and make a declaration to that effect."
This section requires the court to provide the accused with reasonable notice of trial initiation
through proclamation. If the accused fails to appear as specified, the court may declare them
a proclaimed offender after appropriate inquiry, allowing the trial to proceed in their absence.

According to Section 356(2) of the Bharatiya Nyaya Sanhita, the issuance of two consecutive
warrants of arrest with an interval of at least thirty days ensures that the accused cannot evade
trial while simultaneously providing them with a fair opportunity to present their case. In the
present matter, the Sessions Court adhered to these procedural requirements, thereby ensuring
that fair process was followed.

Section 356(1) of the Bharatiya Nyaya Sanhita stipulates that the Court shall not commence
trial until a period of ninety days has elapsed from the date of framing of the charge. This
procedure ensures that adequate opportunity is provided to the offender to properly present
their case before the court. It is evident from the factual matrix that the charges were framed
in December and the trial commenced in April, clearly satisfying this statutory requirement.

3. Wilful abscondance by the accused to invade trial

In the case Regina v. Jones, the House of Lords held that when an accused deliberately
chooses to absent himself from trial, his complete indifference to the consequences of his
actions would lead to an inference of waiver of his right to be present and legal representation
during trial. This principle is directly applicable to Jamie's situation, as he willfully
absconded after being granted default bail, demonstrating a deliberate attempt to evade
justice and obstruct legal proceedings.

Section 84 (4) of BNSS provides that if the proclamation is for someone accused of a serious
offence punishable with ten years or more in prison, life imprisonment, or death, and that
person does not appear at the time and place mentioned, the court can, after proper inquiry,
declare them a "proclaimed offender."

State of Madhya Pradesh v. Pradeep Sharma and Lavesh v. State (NCT of Delhi it was held
that- when the accused is“absconding” and declared as a “proclaimed offender”, We reiterate
that when a person against whom a warrant had been issued and is absconding or concealing
himself in order to avoid execution of warrant is declared as a “proclaimed offender”

Section 356, Clause 1 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) deals with in
absentia trial of proclaimed offenders. It states that-
 if a person declared a proclaimed offender has absconded to evade trial ,
 and there's no immediate prospect of arrest
 the court can proceed with the trial as if the person were present, after recording reasons
and in the interest of justice.

After dealing with the provisions of section 356 of BNSS ,issuing summons and warrant to
the Jamie, it could not be executed by the police on account of Jamie absconding the court
held him as a “proclaimed offender”

As established in Syed Qasim Razvi vs The State Of Hyderabad And Others, trial in absentia
is permitted when the accused's absence results from behavior intended to impede justice.
Jamie's conduct clearly falls within this parameter as he deliberately absconded after
receiving default bail, showing contempt for the judicial process.

Furthermore, following the precedent in Hussain vs Union of India, the court has thoroughly
documented its attempts to secure Jamie's presence through summons and consecutive
warrants, which could not be executed due to his absconding. This procedural compliance
further strengthens the case for proceeding with trial in his absence.