Hafiz Saeed trial in absentia: How Indian courts can prosecute absconding accused under new law

A Mumbai court could try Lashkar-e-Taiba founder Hafiz Saeed in absentia for his alleged role in the 26/11 Mumbai terror attacks, as Indian prosecutors seek to use a provision introduced under the Bharatiya Nagarik Suraksha Sanhita (BNSS) to prosecute fugitives beyond the reach of Indian authorities.

Special public prosecutor Ujjwal Nikam told the court last week that Mumbai Police had asked the Union home ministry to serve proclamation notices through Interpol on six absconding accused in the 26/11 case, including Saeed and fellow Lashkar-e-Taiba founder Zaki-ur-Rehman Lakhvi. All six are Pakistani nationals believed to be outside India’s jurisdiction.

The move could open a fresh prosecution against Saeed, who is designated as a global terrorist by the United Nations.

It follows a separate case in Jammu, where a court on July 14 issued a non-bailable warrant against Saeed over his alleged role in last year’s Pahalgam terror attack. The action came after the National Investigation Agency sought to have him declared a proclaimed offender and tried in absentia.

Both proceedings rely on Section 356 of the BNSS, which came into force in 2024 after replacing the colonial-era Code of Criminal Procedure. The provision allows courts, under specified conditions, to conduct a trial, deliver a verdict and impose a sentence even when an accused deliberately remains absconding.

What Section 356 Says

Under Section 356, a court can proceed against a proclaimed offender who has fled to evade trial and whose arrest is not likely in the immediate future. The judge must record reasons in writing before treating the accused’s continued absence as a waiver of the right to be present.

The prosecution must first clear several procedural hurdles.

After charges are framed, the accused is summoned. If they fail to appear, the court can issue an arrest warrant, followed by a non-bailable warrant if the accused continues to evade proceedings.

For offences punishable with 10 years or more in prison, life imprisonment or death, the court can declare an absconding accused a proclaimed offender. Under Section 84 of the BNSS, a public proclamation must give the accused at least 30 days to appear.

Only after the accused is declared a proclaimed offender can prosecutors seek a trial in absentia.

The court must then ensure four additional safeguards: issue two consecutive arrest warrants at least 30 days apart; publish a notice in a national or local newspaper circulating near the accused’s last known address; inform a relative or friend about the start of proceedings; and affix a notice at the accused’s residence and the relevant police station.

Even after these requirements are met, the trial cannot begin until at least 90 days have passed from the framing of charges.

Once proceedings begin, the trial follows the normal criminal process. The prosecution must prove its case beyond reasonable doubt, while the court must provide a state-funded lawyer if the accused does not have one.

The provision also allows a later-arrested accused, in certain circumstances, to seek re-examination of evidence recorded in their absence if they can establish that they were not adequately informed about the proceedings.

Appeals Also Face Conditions

The safeguards continue after conviction. An accused convicted in absentia cannot challenge the verdict in an appellate court without first appearing before the court. Such an appeal must also be filed within three years of the judgment.

How the Earlier Law Worked

Trial in absentia was not entirely unknown under the previous Code of Criminal Procedure, but the framework did not provide a clear route to a final verdict.

Section 299 of the CrPC allowed courts to record prosecution evidence against absconding accused, but did not permit a complete trial. If the accused was subsequently arrested, proceedings generally had to restart, including the re-examination of witnesses.

Section 317 allowed judges to continue an inquiry or trial without the accused in limited circumstances, including when their personal attendance was unnecessary, they were disrupting proceedings or were too ill to appear.

Neither provision created a comprehensive mechanism for convicting and sentencing a fugitive in their absence.

Delhi Provides Early Tests

Courts in Delhi have already begun testing the new framework.

On July 9, a special court at Rouse Avenue Courts opened a trial in absentia against UK-based gangster Kapil Sangwan, who faces charges under the Maharashtra Control of Organised Crime Act as part of an alleged 11-member criminal syndicate.

Sangwan was declared a proclaimed offender during the Delhi Police Crime Branch investigation. He faces allegations including extortion, murder, attempted murder, firing and criminal intimidation.

The trial is currently being heard at the charge-framing stage, with Sangwan represented by a state legal-aid lawyer.

In another case, Delhi Police secured what was described as the first absentia trial by an investigating agency under the new law on November 18 last year.

The case involved the alleged kidnapping and murder of 68-year-old Ramesh Bhardwaj in Outer Delhi’s Narela. His employee, Jitender Mahto, also disappeared around the same time.

Investigators concluded that Mahto had allegedly killed Bhardwaj following a financial dispute. Mahto’s son and Bhardwaj’s son were arrested, while Mahto remained untraceable and was declared a proclaimed offender. After the chargesheet was filed, charges were framed against all three, paving the way for proceedings against Mahto in his absence.

Lawyers Highlight Efficiency

Public prosecutor Akhand Pratap Singh, who represents Delhi Police in the Sangwan case, said the new provision could reduce delays by eliminating the need for an entirely new trial if an absconding accused is later arrested.

Lawyer MS Khan said the earlier system often left cases stalled when accused persons fled the country or went into hiding after being declared proclaimed offenders.

Under the new framework, he said, trials can continue while still preserving the accused’s right to legal representation and, in appropriate cases, the opportunity to challenge evidence later.

A New Balance Between Justice and Rights

Section 356 represents a significant shift in Indian criminal procedure: an accused’s deliberate evasion of justice no longer necessarily prevents a case from reaching a verdict.

At the same time, the requirement for repeated warrants, public notices, notification of relatives and a mandatory waiting period is intended to ensure that trial in absentia remains a last resort rather than a shortcut around an accused’s right to a fair trial.

The potential proceedings against Hafiz Saeed could become a major test of how far Indian courts will use the new framework in high-profile terrorism cases involving fugitives who have remained beyond the country’s jurisdiction for years.