The trial in absentia means trial of the accused an recording evidences without his presence. it is the general rule that one accused must be tried in the open court and in the presence of him or his pleader. section 339 B , 87 and 88 of Code of Criminal Procedure discuss about the process of trial where the accused in not presence.
In addition section 339 B Section 512(1) Provides that if it is proved that an accused person has absconded, and that there is no immediate prospect to arrest him or her, the trial court may in his or her absence, examine the prosecution witnesses, record there depositions. Any such deposition may used against him as evidence in his trial.
It is to be noted that provision of section 512 is an exception to the general rule of recording Evidence only in the presence of the accused as discussed above.
Procedure of trial in Absentia:
Section 339 B says that,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.
But it will not necessary to comply with the above mentioned procedure wherein 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. in that case 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.
The words of the Section 87 are :
If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation
The proclamation shall be published as follows:
(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house.
The provision of section 88:
The Court issuing a proclamation under section 87 may at any time order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person.
If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the Government, be made through the Collector of the district in which the land is situate, and in all other cases-
(a) by taking possession; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or
If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made-
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
Only after comply the provisions of proclamation and attachment the court can try an absconded accused under section 339 B of the Said Code.
