It is a peremptory norms enshrined in the principles of natural justice that no person should be condemned unheard. Nonetheless the law can never be in abeyance for any inordinate person. Moreover, the deterrent theory of punishment professes for prompt punishment of the wrong-doers for creating exemplary signposts for the citizenry to be refrained from committing any crime. The right to get justice of the victims of offences also imposes an undeniable influence on the judiciary to respond within a reasonable time. So the gavel cannot be kept in rest for eternity. In the adversarial adjudication systems, some occasions arise when the courts hold trials in the absence of the persons complained against. The criminal law of our land permits in absentia trial considering the right of the accusers to get justice against fugitive criminals.
Law’s black letters construed
In spite of issuing all processes, if some of the accused persons or all the accused persons do not appear or if the accused persons cannot be arrested, steps should be taken to hold trial in absentia for those fugitives both in complaint and police cases. Before passing any order for holding trial in absentia procedure as laid down in Section 87, 88 and 339B of the Code of Criminal Procedure is imperative to be adhered to. Before issuing processes under those sections, a court cannot proceed to hold trial in absentia in pursuant to the provisions of section 339B of the Code. Section 339B envisages that where, after the compliance with the requirement of section 87 and 88, the court has reason to believe that an accused person has absconded or concealed himself so that s/he cannot be arrested and produced for trial and that there is no immediate prospect of arresting her/him, the court taking cognizance of the offence shall pass an order for publication of notices in at least two national Bangla dailies having wide circulation directing such a person to appear before it within a period as specified in the order. If after expiry of the date specified in the order, the person fails to comply with the direction of the court, that person shall be tried in his absence.
In section 339B, it has been clearly mentioned that the court can pass such an order when it has reason to believe that an accused has absconded or concealed her/him or that there is no immediate prospect of arresting her/him. It is pertinent to mention that publication of the notice in a local newspaper having negligible circulation will not be considered as adherence to the provisions of section 339B of CrPC. After publication of notice in the newspapers, if the person appears before the court in compliance with the direction, then the court may pass necessary order for sending him to the custody or may grant bail on consideration of any bail prayer placed before it. However, if s/he does not appear in compliance with the direction, the Court is under an unyielding legal obligation to pass the second order for holding trial in absence of the said absconding person and accordingly shall fix a date for hearing under section 241A or 265C of the Code.
Trial in absentia in grave cases
The cases which are to be tried by a Tribunal constituted under Nari-O-Shishu Nirjatan Daman Ain, 2000, the Tribunal has the power to take necessary steps for holding trial in absentia. Such provision is contained in section 21 of the concerned law. Therefore, in such a case, Judicial or Metropolitan Magistrates are not authorised to pass any order directing an accused person who could not be arrested or who remains absconded or concealed himself to appear before the Court by publishing any notice in the newspapers. Section 21 of the law says that the Tribunal is to form an opinion to hold trial in absentia. In order to form such an opinion, the Tribunal must have some materials before it. Similarly, in cases which are to be tried by any Special Tribunal constituted under section 26 of the Special Powers Act, a court of Judicial or Metropolitan Magistrate can issue processes under sections 87 and 88 of CrPC, but cannot take steps for publishing notice in the newspapers giving a direction to the absconding accused to appear before the concerned court within a specified time. Such power is given to the Special Tribunal itself under Sub-section (6) of section 27 of the Special Powers Act, 1974.
Right to get justice not diminished
No steps are to be taken for holding trial in absentia in respect to an accused who absconded after obtaining bail from a court. Such power is given to the court in Sub-section (2) of section 339B of the Code and Sub-section 6A of section 27 of the Special Powers Act and Sub-section 2 of section 21 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. It is worth mentioning that, trial in absentia is ordained after exhausting all the processes to compel the accused to appear in the Court for defending his case keeping in judges’ mind the cardinal principle of criminal law that is “let 100 accused persons be set free but not an innocent person be jeopardised by the Courts of law.”