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Absentia Trial Laws: Legal Perspectives



  Jan 02, 2024

Trial in Absentia Laws



India’s New Trial in Absentia Law:

Bharatiya Nagarik Suraksha Sanhita 2023 Legislation: Under Clause 356 of the Bharatiya Nagarik Suraksha Sanhita 2023. Application: Applicable to proclaimed offenders evading trial. Procedure: Trial proceeds after recording reasons in writing, with the court treating the absence as a waiver of the right to be present. Representation: Provision for state-appointed lawyer for the absentee accused.

Comparison with Other Countries:

1. China:

Legislation: 2018 amendment to the PRC Criminal Procedural Law (CPL), Article 291.
Application: Specific crimes including embezzlement, bribery, compromising national security, or terrorist activities.
Procedure: Conducted by intermediate people’s courts or first instance courts at municipal levels.
Limitation: Not applicable for crimes like homicide, kidnapping.

2. Bangladesh:

Legislation: Code of Criminal Procedure, 1898, Section 339B.
Application: Absconding or evading arrest.
Procedure: Court specifies the time period for the accused to appear before proceeding with the trial in absentia.

3. Canada:

Legislation: Section 475(1) of the Criminal Code.
Application: If the accused absconds during the trial.
Procedure: Trial continues to judgement and sentencing in absence.
Additional Provision: Possibility of issuing an arrest warrant.

4. United States:

Application: For organizations, minor offences, or with defendant’s consent.
Procedure: Trial, including verdict and sentencing, can proceed in the defendant’s absence.
Waiver of Presence: Explicit waiver in court or voluntary absence considered as a waiver.

5. Pakistan:

Legislation: Section 512 of the Code of Criminal Procedure.
Application: Evidence recording in the absence of the defendant proved to have absconded.
Procedure: Sessions court or High Court can examine witnesses for the prosecution.

India’s Law in Context:

India’s law is comprehensive, covering a wide range of absconding offenders. It shares similarities with China in terms of providing state-appointed lawyers and the period before the commencement of the trial. However, it differs from countries like the US and Canada, where the scope and application vary significantly.

Overall, India’s trial in absentia law aligns with international norms, providing a balance between the need to proceed with judicial processes and upholding the rights of the accused.

SRIRAM’s


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