Validity of Trial When the accused was absent:

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.
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.

It becomes relevant to consider the law in Bangladesh as certain legislations of the country
explicitly provide for in absentia proceedings. Section 339B. of Chapter XXIV of The Code of
Criminal Procedure, 1898 (Act No. V of 1898) of Bangladesh, titled “Trial in absentia” provides
for the concept. Sub-section (1) of the same states that, “where the Court has reason to believe
that the accused is absconding or concealing himself so that he cannot be arrested and produced
for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the
offence complained of shall direct such person to appear before the Court in the manner
prescribed, and if such person fails to comply with such direction, he shall be tried in his
absence.” Sub-section (2) of the same provides for in absentia trial of the accused in situations
where he is absconding or has failed to appear before the Court, where he was earlier produced
or has obtained bail from the court.
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.”