Trial in Absentia Under BNSS Section 356 in 2026: Proclaimed Offender, 90-Day Rule, State Defence and Appeal

The operative statute is available in the official India Code text of the BNSS. Section 356 came into force with the BNSS on 1 July 2024.

1. What does “trial in absentia” mean?

Trial in absentia means that criminal proceedings continue even though the accused is not physically before the court. Section 356 goes further than merely preserving evidence against an absconder. Once its conditions are met, the court may conduct the trial in the like manner and with like effect as if the proclaimed offender were present, and it may pronounce judgment.

The provision treats deliberate abscondence after proclamation as a statutory waiver of the right to be present and tried in person. That consequence is serious, which is why the preliminary safeguards are not ornamental.

2. Section 356 does not apply to every absent accused

The first distinction is between an accused who misses a date, an accused against whom warrants have been issued, an absconder, and a person who has been declared a proclaimed offender. Section 356(1) specifically speaks of a person declared as a proclaimed offender who has absconded to evade trial and whose immediate arrest is not reasonably expected.

A routine non-appearance should therefore not be casually converted into a Section 356 trial. The record should show why the statutory threshold is satisfied.

3. The court must record reasons in writing

Section 356 expressly requires reasons. The order should address the factual foundation for proceeding without the accused, including the proclamation status, efforts to secure presence, conduct indicating evasion, and why there is no immediate prospect of arrest.

This requirement matters both at trial and in any later challenge because the legality of the entire absentia procedure can depend on whether the court demonstrably applied its mind before invoking an exceptional mechanism.

4. The 90-day rule after framing of charge

The proviso to Section 356(1) states that the court shall not commence the trial unless 90 days have elapsed from the date of framing of charge. This is a statutory waiting period, not a general target.

It gives the proclaimed offender a final window in which to appear and also allows the mandatory service and publication steps to operate before evidence is taken in the person’s absence.

5. Two consecutive warrants are required

Before proceeding under Section 356, the court must ensure issuance of two consecutive warrants of arrest with an interval of at least 30 days. The wording of the provision is important. A single warrant followed immediately by an absentia order does not reproduce the statutory sequence.

The order-sheet should make the dates of the warrants and the interval visible. For defence counsel reviewing a conviction in absentia, these dates are among the first documents to verify.

6. Newspaper publication is a separate safeguard

The court must cause publication in a national or local daily newspaper circulating at the place of the proclaimed offender’s last known residential address. The notice must require appearance for trial and inform the person that if he fails to appear within 30 days of publication, the trial will commence in his absence.

This step serves a different purpose from a warrant. It creates public notice of the imminent trial and the consequence of continued non-appearance.

7. Relative or friend should be informed where available

Section 356 also requires information about commencement of the trial to be given to a relative or friend, if any. The court record should disclose whether such a person was identified and how information was communicated.

The phrase “if any” recognises that this may not be possible in every case, but a silent record can invite a question as to whether the statutory exercise was actually undertaken.

8. Affixation at residence and display at police station

Information regarding commencement of the trial must be affixed at a conspicuous part of the house or homestead where the person ordinarily resides. It must also be displayed at the police station of the district of the last known residential address.

Together with the warrants and newspaper publication, these steps create a layered notice structure rather than reliance on any one mode.

9. State-funded defence is mandatory where no advocate appears

Section 356(3) provides that where the proclaimed offender is not represented by an advocate, an advocate must be provided for the defence at State expense. The absent accused is therefore not to be tried without any adversarial representation merely because he has absconded.

The appointed advocate should receive access to the prosecution material necessary to defend the case, test the evidence and raise legal objections. An absentia trial remains a criminal trial, not an administrative confirmation of the prosecution version.

10. Evidence recorded before the absentia trial

Section 356 recognises that prosecution witnesses may already have been examined by the competent court. Their recorded depositions may be used against the proclaimed offender in the later inquiry or trial contemplated by the provision.

However, if the person is later arrested, produced or voluntarily appears during the trial, the court may, in the interests of justice, permit him to examine evidence that was taken in his absence. This gives the court a corrective power where fairness requires renewed testing of evidence.

11. Audio-video recording of evidence

Section 356 permits deposition and examination of witnesses, as far as practicable, to be recorded by audio-video electronic means, preferably mobile phone, with the recording preserved as directed by the court.

For practitioners, preservation and chain-of-record issues remain important. A digital recording is useful only if it can be reliably identified, accessed and connected with the formal judicial record.

12. What happens if the accused appears during trial?

Appearance during the trial does not automatically erase everything already recorded. The statute gives the court discretion, in the interest of justice, to allow the accused to examine evidence taken in his absence.

A focused application should identify the witness or evidence sought to be revisited, the prejudice caused by absence, and why examination is necessary for a fair adjudication rather than merely seeking a wholesale restart.

13. Voluntary absence after trial has commenced

Section 356 also addresses voluntary absence after the trial has commenced. Continued or later absence does not by itself prevent completion of the trial and pronouncement of judgment within the statutory framework.

That provision is designed to prevent an accused from frustrating proceedings simply by disappearing after the court has lawfully crossed the Section 356 threshold.

14. Appeal after conviction in absentia

The appeal rule is unusually strict. Section 356(7) states that no appeal shall lie against the judgment under the section unless the proclaimed offender presents himself before the appellate court. It further provides that no appeal against conviction shall lie after three years from the date of judgment.

Accordingly, post-conviction strategy cannot be planned as if this were an ordinary conviction where the appellant remains outside the process. Surrender or presentation before the appellate court becomes a statutory issue at the threshold.

15. The three-year outer limit needs immediate attention

The three-year bar means that a person who learns of a conviction in absentia should not assume that a challenge can be filed indefinitely. The date of judgment, the date of knowledge, the legality of proclamation and Section 356 compliance should be collected immediately.

Any constitutional or exceptional challenge will depend on its own facts. The safest practical approach is to treat the statutory period as requiring urgent action rather than building a strategy around a later plea for indulgence.

16. Section 356 and proclamation proceedings are different stages

A declaration as proclaimed offender and the later decision to conduct trial in absentia are distinct judicial steps. A defect in proclamation can therefore have consequences for the foundation on which Section 356 is invoked.

Defence review should obtain the proclamation order, process reports, warrants, service material, publication record and the Section 356 order itself. Looking only at the final judgment can miss the decisive procedural issue.

17. 2026 High Court treatment: Ravi alias Ravindra Singh

In Ravi alias Ravindra Singh v. State of U.P., decided on 5 May 2026, the Allahabad High Court discussed the BNSS framework for proclaimed offenders and set out the Section 356 safeguards, including the 90-day period, warrants, publication and State-funded representation. The judgment is available at Indian Kanoon.

The decision is useful because it places the new provision within the broader sequence of process, proclamation, representation and trial under the BNSS.

18. Can Section 356 be invoked in a joint trial?

Yes. The text expressly contemplates a proclaimed offender “whether or not charged jointly”. This allows proceedings against the absconder to be dealt with even where other accused are before the court.

The practical case-management question will depend on whether evidence overlaps, whether separate treatment is necessary, and whether the rights of present co-accused are affected.

19. What a defence lawyer should audit before an absentia trial

• the order declaring the accused a proclaimed offender;
• material showing deliberate evasion of trial;
• the order recording why immediate arrest is not expected;
• the date of framing of charge and expiry of the 90-day period;
• both warrants and the minimum 30-day interval;
• newspaper publication and its circulation at the last known address;
• information to a relative or friend, where available;
• affixation at the residence and police-station display;
• appointment and effective participation of defence counsel;
• preservation of audio-video evidence, if used;
• the manner in which earlier depositions are relied upon.

20. What the prosecution should place on record

The prosecution should not leave compliance to inference. The record should contain service reports, warrant returns, publication proof, affixation material and other documents demonstrating that each statutory step was completed. A clean chronology reduces later controversy about whether the exceptional procedure was lawfully triggered.

21. Can a conviction in absentia be challenged for non-compliance?

Yes, procedural legality can be challenged. The strength and route of the challenge will depend on the stage, the nature of the defect, whether the accused has appeared, and the remedy being invoked. Some defects may go to the jurisdictional foundation of proceeding under Section 356, while others may require a prejudice analysis.

The appellate restriction in Section 356(7) must be considered alongside any challenge. A litigant should not assume that a general inherent-power petition can automatically substitute for the statutory appellate route.

22. Trial in absentia is not the same as exemption from appearance

Section 356 deals with proclaimed offenders who have absconded. By contrast, Sections 228 and 355 deal with situations where a court may lawfully dispense with the personal attendance of an accused who remains represented and participates through counsel or, where permitted, through audio-video electronic means.

Confusing these concepts can lead to serious procedural mistakes. An accused with a valid exemption order is not thereby a proclaimed offender, and an absconder cannot treat Section 355 as a substitute for surrendering to lawful process.

23. Frequently asked questions

Can a court start a Section 356 trial immediately after declaring someone a proclaimed offender?

No. Among other safeguards, the statute requires that 90 days must have elapsed from framing of charge before the trial commences, and the notice requirements under Section 356(2) must be complied with.

Is an advocate compulsory in a trial in absentia?

Where the proclaimed offender is not represented, Section 356 requires an advocate to be provided for the defence at State expense.

Can witnesses be recalled if the accused later appears?

The court may, in the interests of justice, allow the accused to examine evidence taken in his absence. It is a judicial discretion under the statutory scheme, not an automatic restart of every deposition.

Can the accused appeal while remaining outside the process?

Section 356(7) states that no appeal against the judgment under the section shall lie unless the proclaimed offender presents himself before the appellate court.

What is the time limit for appeal against conviction under Section 356?

The proviso states that no appeal against conviction shall lie after three years from the date of judgment.

24. Conclusion

Section 356 is one of the most consequential procedural changes introduced by the BNSS. It prevents a proclaimed offender from indefinitely paralysing a criminal trial, but it does so through a tightly sequenced process. The 90-day waiting period, repeated warrants, publication, personal-notice efforts, affixation, State-funded defence and special appellate rule should all be treated as substantive parts of the statutory design.

For a court, the safest approach is a reasoned compliance record. For the prosecution, it is documentary proof of every required step. For the defence, the correct starting point is a date-wise audit of proclamation and Section 356 compliance rather than an abstract argument against trial in absentia.