This article is written by Srilakshmi S P, a student of JSS Law College, Mysuru. This article explains about how the accused is the main subject of adjudication and the procedure to be followed as provided in international convention and its legality.

Introduction

The main objective of the criminal trial is attainment of justice and maintenance of rule of law. It is the right of the accused to appear in person before the court and is considered as inherent in the notion of a fair trial. Trial in absentia is derived from the Latin word which means ‘trial in absence’. Trial in Absence (TIA) is the conducting of a trial when the accused is willfully absent and has surrendered his right to be present in the trial. It is entailing the criminal trial in the absence of the accused. The trial of the criminal cases suffers due to absconding of the accused as it is the right of the accused to be present in trial proceedings but not a duty.

Legitimacy of trials in absentia

The rationale behind the trial in absentia is that the accused cannot delay the administration of justice by abandoning himself from the trial. On the contrary it violates the right to trial of the accused. A trial in absentia is an important principle of law and must not be dismissed, as it has proved to be beneficial in certain circumstances.

  1. The accused has to wait for a long time for his charges to be proved in court of law and the same also applies to the victim who awaits justice and requires closure of the case through legal means. Such delay defeats the purpose of efficient court proceedings as time is the essence of a fair trial, and it becomes detrimental to both the parties and administration of every proceedings. 
  2. Deterioration and destruction of evidence due to the passage of time is also another weakness of trial in absentia. The accused will abscond and evade from the criminal justice system. Most of the time political pressure is deployed on the judiciary to dispense justice to the parties involved. In such a situation a trial in absentia will be a viable solution, so that the proceedings are not delayed by the accused absence. 

Roots of trials in absentia

In civil law countries like France and Germany which follow an inquisitorial system of law, trial in absentia are a part of criminal procedure and can be used when the accused is safeguarded by the codes like European Convention on Human Rights or International Covenant on Civil and Political Rights.

In common law countries like India, U.K  which follows an adversarial system of law, trial in absentia can be used only if an accused voluntarily absconds after the commencement of the trial during which the accused was present. 

Earlier when the accused was absent from the trial, he was not tried in absentia or adjudged guilty by default, but declared as “outlaw” and was subjected to summary execution. An exception was granted that the defendant’s presence is jurisdictional in capital cases and if he is not in custody, he could waive the right to be present by voluntarily absenting himself after the trial had commenced.

Effect on justice

The rationale of trial in absentia

  1. It prevents the accused from dictating when the case against him will proceed.
  2. It reduces the stress on victims by ensuring trial proceeds on the scheduled date and disposed of in a timely manner.
  3. Reduces inconvenience to victims, witnesses and judges.
  4. Avoid problems with multi-accused trials when one of the accused fails to appear and the other accused are ready to proceed.

The three main conditions for trial in absentia

  1. The accused have already been called for trial.
  2. He has been duly notified about the trial.
  3. His failure to appear for the trial is inexcusable.

There are two types of absconding of accused

  1. Accused absconds during the investigation at the pre-arrest stage.
  2. Accused who abscond after they are arrested and enlarged on bail.

Section 82 and 83 of CrPC provides for the proclamation and attachment of properties but it is not effective if the accused does not have any property. Section 174 A was added to IPC which states that if the accused fails to appear before the court at a specified time and place he will be punished for three years and fine. And Section 229 A of IPC states that if the accused does not appear before the court after being enlarged on bail he will be punished for one-year imprisonment and fine. To blame the police for their inability to execute the warrant of arrest and to secure the attendance of the accused is not a solution.

Major defence for protecting trial in absentia are:

  1. Legal representation by the counsel.
  2. Access to all relevant evidence of the case.
  3. Right to challenge the judgement in default.

Trial in absentia and popular people

When a celebrity is in conflict with the law there comes public sentiment in two portrayals. One, where the power and wealth will show judges being chary and the second being the slowed justice system for obliqueness in favour of celebrities. In most of the cases, the counsel representing the celebrity accused will appear before the court. Section 205 of CrPC provides for permanent exemption of appearance before the court. So the personal examination of the accused will also be dispensed which is provided under Section 313 of CrPC. In an instance actress Sonali Bendre was accused of obscenity and she was granted exemption from appearance except for the framing of charges. In another instance, actress Kangana Ranaut pleaded for permanent exemption from personal appearance for a defamation case filed against her and the same was granted by the Mumbai court. Famous politician Rahul Gandhi also asked for permanent exemption from personal appearance before court for a defamation case and the same was granted by the Ahmedabad Court. Prayag Thakur was also granted the exemption on the ground that she was a newly elected legislator and should attend the parliamentary session by the NIA Court.

European Convention on Human Rights

Article 6 of the Convention speaks about the right to a fair trial. It states that a trial in absentia is not a violation of the right to a fair trial and does not infringe the rights of the accused, but the accused should be appropriately defended and his counsel who wishes to attend the trial should be permitted to plead the case. The ECHR jurisprudence holds the trial by providing the following safeguard:

  1. The accused should have effective knowledge of the proceedings and hearings of the case.
  2. The accused should have legal representation by the counsel. It is the burden of the state to show that the accused counsel has represented effectively without any undue influence or pressure.
  3. The accused should have the right to a retrial or an ex novo trial in his or her presence. He has to prove the merit of charges both the facts and law.

The duty to guarantee the right of a criminal defendant to be present in the courtroom ranks accordingly as one of the essential requirements of Article 6.

International Covenant on Civil and Political Rights

Trial in absentia is controversial in international criminal law. It is a fundamental right to present in one’s own trial, and the same has been incorporated in ICCPR. Article 14(3)(d) of the Covenant provides three separate rights, they are:

  1. Right to be present in one’s own trial.
  2. Right to defend themselves personally or through counsel.
  3. Right to representation even when the accused cannot afford it.

The United Nations Human Rights Committee has the right to monitor the state parties as to adhering to the rights incorporated in the Covenant.

International Criminal Courts

International Criminal Courts are established to set international standards for conducting trials for international crimes. Article 63 of the ICC prohibits trial in absentia except in a few circumstances. They are:

  1. If the accused is present in the court and disrupts the trial, the Trial Chamber can remove the accused and can make the provision to observe the trial through communication technology from outside the courtroom by instructing the counsel. This measure is used in exceptional circumstances after exhausting reasonable alternatives is proved inadequate.

Some delegation had differences of opinions on trials in absentia:

  1. That it would degenerate into show trials and would discredit the ICC quickly.
  2. That it has little practical value as the accused have the right to a new trial upon appearance before the court.
  3. That due to the nature of crimes in the statute it would become impossible to compel the appearance of the accused.

Trial in Absentia in India

In a very large number of cases, the accused absconds in different stages of the trial which results in the delay of the cases for want of appearing of cases. When there are multiple accused in a single case and one or more accused absconds which results in multiple proceedings for the same case. And the primary reason why the courts are not liberal in granting bail is the apprehension of absconding of accused in the trial.

Section 273 of CrPC makes an obligation to the magistrate to take the evidence in the proceedings of the case in the presence of the accused, if his presence is dispensed then in the presence of the accused pleader.

This does not conclude the trial but enables the accused to evade adjudication and the adjudicatory process will be self-possessed at the will of the accused to appear before the court. Due to a lapse of time, the vital evidence will have vanished and the victims become dejected too.

Section 299 of CrPC is an exception which states that the evidence can be recorded in the absence of the accused and can be used against him. But the above provision is not absolute, as the recorded evidence cannot be used as long as the witness has died or his appearance cannot be secured without undue delay. In the case of multiple accused the victims have to dispose of multiple times as and when the accused are arrested. For example rape cases, multi-million fraud cases.

Section 317 of CrPC provides for holding of trial in any stage in the absence of the accused. If the court is satisfied with reasons that the personal appearance of the accused before the Court is not necessary or is disturbing the proceedings of the court he can be exempted from the appearance.

Section 89 of CrPC makes provision that if the person has ensured of appearance through bond and does not appear, then the court can issue a warrant of arrest of the person. 

The magnitude of the Trial in absentia came to keen notice in the case Hari Singh v. State of Jharkhand (2018 SCC Online Jhar 2534) where the Jharkhand High Court observed that there should be some Amendments to Section 299 of CrPC.

The Indian judicial system should adopt the trial in absentia principle with utmost care and caution and only in situations where the justice is barred due to the accused absence and there won’t exist any reasonable way of presenting him to court. So such trial would not violate either principle of natural justice or the accused right to a fair trial 

Conclusion

Different jurists have diverse opinions on the trial in absentia procedure as some claim it fosters disrespect to the law and the practice is inherently unfair. As the defendant will be priorly informed about the time, place of the trial and do not participate, it’s a standing to complain. Some jurists opine that a trial in absentia involves a forfeiture rather than a waiver and that the right to be present might be lost without an intention to waive it. It affects the progress of the case at every stage from investigation, inquiry, and trial and even after the conclusion of trial for execution of warrant of conviction. So proper codification should be made so that there will be speedy adjudication without the dispensation of justice.

References

  1. https://www.tribuneindia.com/news/comment/trial-in-absentia-can-help-the-cause-of-justice-298606
  2. https://brill.com/view/book/9789047429012/B9789047429012-s013.xml#:~:text=The%20Legitimacy%20of%20Trials%20in%20Absentia&text=According%20to%20the%20Committee%2C%20Article,the%20accused%20cannot%20afford%20this.
  3. https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2480&context=lawreview
  4. http://hrlibrary.umn.edu/fairtrial/wrft-tm.htm
  5. https://www.scconline.com/blog/post/2020/10/10/absenteeism-from-criminal-justice-a-plea-for-reform/#_ftn2
  6. http://www.legalservicesindia.com/article/1524/Legal-Protection-available-to-the-accused-during-a-criminal-trial.html#:~:text=Article%2021%20of%20the%20constitution,to%20free%20and%20speedy%20trial.
  7. https://canestrinilex.com/en/readings/italian-in-absentia-trial-violates-the-right-to-a-fair-trial/
  8. https://www.hrw.org/sites/default/files/related_material/Letter%20Cambodia-HRW-ECCC%20Rules%2011.17.06_0.pdf
  9. https://criminallawstudiesnluj.wordpress.com/2019/07/25/conducting-trials-in-absentia/
  10. https://doj.gov.in/sites/default/files/local%20ref.pdf
  11. https://www.ndtv.com/topic/exemption-from-court-appearances

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