Trial in Absentia

Meaning
• Trial in absentia is a criminal proceeding in a court of law in which the person who is
subject to it is not physically present at those proceedings. In absentia is Latin for "in
(the) absence". Its meaning varies by jurisdiction and legal system.

• In common law legal systems, the phrase is more than a spatial description. In these
systems, it suggests a recognition of a violation of a defendant's right to be present in
court proceedings in a criminal trial. Conviction in a trial in which a defendant is not
present to answer the charges is held to be a violation of natural justice. Specifically, it
violates the second principle of natural justice, audi alteram partem (hear the other
party).

• In some civil law legal systems, such as that of Italy, absentia is a recognized and
accepted defensive strategy. Such trials may require the presence of the defendant's
lawyer, depending on the country.
 Application of trial in absentia in Bangladesh

• The trial in absentia refers to the trial and recordings of evidence

without the presence of the accused. In Bangladesh, the general rule is
that the accused must be tried in the open court in the presence of
him or his pleader during hearing and also in the time of pronouncing
judgment. But there are some other provisions in specific laws existing
in Bangladesh which deals with exception of this general rule. In spite
of issuing all the due processes including summon and arrest warrant,
if the accused does not appear before the court or cannot be arrested,
steps should be taken to hold a trial in the absence of those fugitives,
both in Complaint Register (CR) and police cases.
 CrPC 1898
• 1[339B. 2[(1) Where after the compliance with the requirements of section 87 and section 88,
the Court has reason to believe that an accused person has absconded 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, by order 3[published in at
least two national daily Bengali Newspapers having wide circulation], direct such person to
appear before it within such period as may be specified in the order, and if such person fails to
comply with such direction, he shall be tried in his absence.]
•
•
• (2) Where in a case after the production or appearance of an accused before the Court or his
release on bail, the accused person absconds or fails to appear, the procedure as laid down in
sub-section (1) shall not apply and the Court competent to try such person for the offence
complained of shall, recording its decision so to do, try such person in his absence.
 Sec. 21, Nari o Shishu Nirjatan Daman Ain, 2000
• i. If the Tribunal has reasonable ground to believe that

• a) The accused is absconding or hiding himself to avoid arrest or consign himself

from trial; and

• b) There is no chance for arresting him immediately, the tribunal can direct the
accused to be present before the Tribunal within the period stated in the order, not
more than thirty days, which is published in at least two daily Bangla newspaper, and if
the accused fails to be present before the Tribunal within the prescribed period, the
Tribunal shall conclude the trial in absence of him.

• ii. If an accused abscond after, his appearance before the tribunal or he is

produced before the Tribunal or he is released on bail, the provision of sub- section (i)
shall not apply to him and the Tribunal shall conclude the trial in absence of him
notifying the reasons of it.
 Dangers of Criminal Justice in Trial in absentia

• The primary responsibility of a criminal court is to hold a fair

trial and the accused is always the middle body here. The trial
is opportunity of the accused to defend and challenge the
evidence brought against him and to place his fact,
circumstances and arguments. ln brief, it is a great opportunity
of the accused to tell his version of fact of the case. That's why,
international law is more careful about in absentia actions.
It is argued that a trial in absentia can violate some human rights. It
should also be kept in mind that if the defendant is not present at the
hearing the possibility increases of someone innocent being punished;
this unjust punishment can violate many human rights. For that reason,
the decision makers must act more carefully in these cases to avoid
making wrong decisions. Another adverse effect of a trial in absentia is
that the defendant's absence may create an impression against the
defendant, thus hazarding a fair trial. Accusations and decisions must be
based on concrete evidences, and it should be kept in mind that any
defendant absent from the trial is not necessarily guilty. For that reason,
evidences must be evaluated in the usual manner in a trial in absentia.
In this regard, some measures should be taken to prevent unfair
situations arising. First, no matter the reason why the defendant
is not present in court, his or her absence must not be viewed as
an indication of guilt. Moreover, in the absence of the
defendant, the defense team must be present and represent the
defendant. Also, with the help of a retrial, the possibility of
making a faulty decision can be reduced. The main motto of
international criminal justice cannot be fulfilled, at least not
immediately, in the absence of the accused during trial.
 Conclusion
• 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.
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.”