Trial in Absentia: Rights When Accused is Absent
What you need to know
A trial in absentia occurs when a criminal court proceeds with the trial even though the accused is absent, typically after repeated non-appearance despite summons or warrants. Under Indian law, this is governed by the Code of Criminal Procedure (CrPC) and the new Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023. The court can declare the accused a proclaimed offender and proceed ex-parte, which can result in conviction without the accused being heard. If you are an accused who missed hearings, or a victim/complainant in such a case, understanding your rights and options is critical to protecting your legal position.
Your rights
An accused has the right to be informed of proceedings and to appear and defend themselves at any stage before judgment
If convicted in absentia, the accused may apply to the court to re-hear the matter upon showing sufficient cause for absence
A proclaimed offender's property can be attached, but the accused retains the right to challenge the proclamation
Legal representation through a lawyer can continue even if the accused is physically absent, in many non-serious offences
What you should do now
Action firstFind out the current status of the case
- Check case status on the eCourts portal (ecourts.gov.in) using your case number, FIR number, or party name
- Identify whether a proclamation under S. 82 CrPC / S. 84 BNSS has been issued against the accused, or if ex-parte evidence has been recorded
Engage a lawyer immediately
- Retain a criminal defence lawyer in the court where the case is pending — this is urgent if proclamation or ex-parte trial has begun
- The lawyer can file a vakalatnama (appearance), apply to set aside the ex-parte order, or surrender the accused before the court with an explanation
Apply to set aside ex-parte proceedings or proclamation
- File an application before the trial court explaining the reason for absence (illness, unawareness of summons, etc.) with supporting documents
- If already convicted in absentia, file a revision petition before the Sessions Court or High Court challenging the ex-parte conviction
If you are the complainant/victim seeking trial to proceed
- File a written request / application before the Magistrate to proceed under S. 299 CrPC / S. 356 BNSS for recording evidence in the accused's absence
- Ensure the court has exhausted all steps (summons, bailable warrant, non-bailable warrant, proclamation) before evidence is recorded ex-parte
Acts applicable
Code of Criminal Procedure, 1973
centralSs. 82–86 (Proclamation & Attachment), S. 299 (Evidence in absentia)
Bharatiya Nagarik Suraksha Sanhita, 2023
centralSs. 84–90 (Proclaimed Offender), S. 356 (Trial in absentia for certain offences)
Indian Penal Code / Bharatiya Nyaya Sanhita
centralRelevant substantive offence sections as charged