Rishav Sen
Introduction
The Code of Criminal Procedure, 1973 (the “CrPC”) aims to balance the rights of the accused with the interests of the state and victims. However, a significant impediment to procedural efficiency in the Indian criminal justice system is the issue of delayed justice due to pendency of criminal cases, which affects both the accused as well as the victim. Therefore, a reform towards ensuring a speedy trial is imperative to uphold the interests of all the parties involved in it. Furthermore, the Supreme Court has read the concept of speedy trial under Article 21 of the Constitution in Hussainara Khatoon v. State of Bihar[1] (“Hussainara Khatoon”).
The principle of speedy trial has found a positive affirmation in the CrPC under Section 309(1) which states that the examination of witnesses during the course of inquiry or trial should be conducted as expeditiously as possible and adjournment of cases should be restricted to a minimum. However, the object and purpose of this section is defeated when an accused is absconding, which has proved to be one of the major reasons for a delay in criminal proceedings. A study sponsored by the Ministry of Law and Justice, Government of India in the state of Jharkhand found that 36% of the total pending police cases were pending due to the absence of the accused.[2] Even though the findings were restricted to the state of Jharkhand, the report suggested that this might be the symptom of a larger malaise affecting the criminal justice system of our country.
The main provision which deals with cases where the accused is absconding with no immediate prospect of arresting him is Section 299 (1) of the CrPC. Therefore, a closer study of this section is required since it plays a key role in ensuring that a trial is not delayed in the absence of the accused.
Framework of Section 299 (1)
The prerequisite for applying Section 299 (1) involves proving that: a) the accused has absconded; and b) there is no immediate prospect of producing him/her before the court. Accordingly, the court must first record an order that, in its opinion, the aforementioned conditions have been satisfied before initiating a proceeding under this Section.[3] Once such an order has been passed, Section 299(1) in its application has two components to it. First, the court can record the depositions of witnesses produced on behalf of the prosecution in the absence of the absconding accused. Second, such depositions can only be admitted as evidence following the reappearance or arrest of the absconding accused, if the witness is dead, or incapable of giving evidence, or cannot be brought before court without an unreasonable amount of delay, expense, or inconvenience involved.
Problems Posed In The Application Of Section 299 (1)
Section 299(1) in its application has posed several challenges, which have defeated the objective of a speedy trial as envisaged by the Supreme Court in Hussainara Khatoon:
First, the depositions recorded under Section 299(1) cannot be admitted as evidence until the reappearance or arrest of the absconding accused. Furthermore, following the reappearance or arrest, the witness whose statement has been recorded will again have to be subjected to cross examination, unless the prosecution is able to establish one of the conditions under Section 299(1). This makes the provision extremely onerous which slows down the trial process. Moreover, it gives the accused a motive to abscond and evade trial till the case loses its momentum and/or any inculpatory evidence deteriorates due to the passage of time.
Second, a procedural requirement which compels the victim or a witness to appear before the court multiple times creates an unpleasant experience and is entirely against their interests, as noted by the Supreme Court in Appabhai v. State of Gujarat.[4] This becomes even more clear in cases of sexual assault where the trauma inflicted on a victim due to repeated examinations and cross-examinations is completely unjustified since the court has already established that the accused has deliberately absconded.
Third, in cases involving multiple accused wherein some are absconding while others are in custody, the trial gets delayed as the process of declaring an accused as absconding and drawing a proceeding under Section 299 takes time. In the meanwhile, if the trial of the other accused in custody moves forward after splitting up the cases, it could give rise to a multiplicity of proceedings for the same case, which would involve its own unique challenges. It is important to note that splitting up of cases due to one or more absconding accused was discouraged by the Jharkhand High Court in Gagan Thakur v. State of Jharkhand.[5]
Reworking Section 299 (1) In Light Of The Challenges Faced
The adverse effect of an absconding accused on the trial process has been noted by the Supreme Court in several judgements including Surya Baksh Singh v. State of U.P.[6] and Hussain v. Union of India,[7]as well as by the Law Commission of India in its 177th[8] and 239th Law Commission Report[9]. Furthermore, the Jharkhand High Court in Hari Singh v. State of Jharkhand[10]explicitly observed that “[t]he Home Secretary, Government of Jharkhand is also expected to place this fact before the Government so that there may be some State amendment under Section 299 CrPC.”[11] Therefore, in light of the issues highlighted above, the following amendment to Section 299 (1) is proposed:
299. Record of evidence in absence of accused:-
(1) Notwithstanding anything contained in the code, if it is proved that an accused person has absconded and there is no immediate prospect of arresting him/her, the Court competent to try, or commit to trial such person for the offence complained of shall proceed with the trial in his/her absence and it shall not be compelled to re-examine any witness at any point during the trial whose evidence has already been recorded, irrespective of the arrest or reappearance of the accused, and it may pronounce its judgement at the conclusion of the trial based on the evidence already admitted.
Understanding The Doctrine Of ‘Trial In Absentia’
The aforementioned amendment recognises the doctrine of ‘trial in absentia’, which acts on the presumption that an accused by absconding waives its right to be present during their trial, thus allowing the court to proceed in their absence.[12] The importance of an accused being able to present its case has been recognised as in intrinsic part of their right to a fair trial by several international treaties, including Article 14(3)(d) of the International Covenant on Civil and Political Rights and Article 6(3) of the European Convention on Human Rights. However, on the contrary, conducting a trial in the absence of an accused has not been explicitly prohibited in the sphere of public international law. The general consensus in the international sphere tends to suggest that the right of an accused to present its case during trial during can be the subject of judicial discretion by imposing certain exceptions on it.[13] Further support for conducting a trial in absentia in public international law can be found by referring to Article 22 of the Statute of the Special Tribunal for Lebanon, which permits conducting a trial in the absence of the accused. Accordingly, the Special Tribunal for Lebanon ruled in favour of conducting a trial in absentia in the case of The Prosecutor v. Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi, Assad Hassan Sabra in 2012.[14]
In India, the right of an accused to be present during the cross-examination of a witness is a statutory right which has been guaranteed under the CrPC[15] and The Indian Evidence Act[16]. However, the Supreme Court has clarified in Jayendra Vishnu Thakur v. State of Maharashtra that the right of an accused to be present during the deposition of a prosecution witness has not been recognised as a fundamental right under Article 21.[17] Furthermore, the possibility of conducting a trial in absentia is also envisaged by other provisions of the CrPC. Section 353 (6) of the CrPC permits a court to pronounce judgement in the absence of the accused, if they choose to not appear, in order to avoid undue delay in the disposal of the case. Moreover, Section 482 of the CrPC allows a High Court to pass any order to prevent abuse to any process of the court or secure the ends of justice. In fact, the Gujarat High Court had issued a circular in 2016 directing all lower courts to proceed with trial and pronouncement of final verdict of any absconding under-trial prisoner in accordance with Section 299 and 353 (6) of the CrPC.[18]
The aforementioned amendment also has sound jurisprudential backing when we look at foreign jurisdictions, including the USA,[19] UK,[20] Canada,[21] Australia,[22] New Zealand,[23] Bangladesh,[24] and International Courts,[25] which have affirmed the principle of conducting a trial in absentia if the accused has been declared absconding. The Supreme Court of India in Hussain v. Union of India had also drawn reference to Section 339-B of the Code of Criminal Procedure in Bangladesh, which permitted a trial in absentia if the accused is absconding, as a possible solution to this problem.[26] It is also important to note that Bangladesh has recognised the concept of a trial in absentia in other statutes as well including Section 21 of The Prevention of Oppression Against Women and Children, 2000 (Act No. VIII of 2000) and Section 27 (6A) of The Special Powers Act, 1974.
Conclusion
On 4th May, 2020, the Union Ministry of Home Affairs set up a five member committee headed by Prof. (Dr.) Ranbir Singh, with the objective of reforming the criminal laws in India, including the CrPC.[27] Therefore, this would be an opportune time to take cognizance of the issue of delayed justice due to an absconding accused. Accordingly, Section 299 (1) must be amended along the lines of the proposed amendment, by incorporating the doctrine of ‘trial in absentia’, in order to safeguard the right to speedy justice of the parties involved in the trial process. This would also help reduce the problem of pendency of cases, which has been plaguing the Indian Judiciary at all levels.
[The author is a third-year law student at JGLS.]
[1] (1980) I SCC 98.
[2] Judicial Academy Jharkhand, Major Bottlenecks In Procedural Laws Affecting Expeditious Conclusion Of Criminal Trials And Measures Needed To Remove Such Bottlenecks, 90 (2015-16).
[3]Nirmal Singh v. State of Haryana, AIR 2000 SC 1416.
[4] (1988) Supp SCC 241.
[5] (2004) CriLJ 1910
[6] (2013) AD SC 10 565.
[7] (2017) 5 SCC 702.
[8] Law Commission of India, One Hundred And Seventy Seventh Report On Law Relating To Arrest, Report No. 177, (December 2001), https://lawcommissionofindia.nic.in/reports/177rptp1.pdf [Last visited on January 31, 2021].
[9] Law Commission of India, Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities, Report No. 239, (March 2012), https://lawcommissionofindia.nic.in/reports/report239.pdf [Last visited on January 31, 2021].
[10] (2018) SCC OnLine Jhar 2534.
[11]Id.
[12] James G. Starkey, Trial in Absentia, 53 St. John’s Law Review 721 (1979).
[13] Maurice Meli, Trials in absentia: Erosion of the rights of the accused? A comparative study, Faculty of Laws, University of Malta (2016).
[14] Prosecutor v. Jamil Ayyash, Case No. STL-11-01/I/TC, Decision to Hold Trial in Absentia (Special Trib. for Lebanon Feb. 1, 2012).
[15] The Code of Criminal Procedure, 1973, Section 273.
[16] The Indian Evidence Act, 1872, Section 137-138.
[17] (2009) 7 SCC 104.
[18] Saeed Khan, Continue trial even if accused is absent: Gujarat HC to lower courts, The Times of India, July 11, 2016, https://timesofindia.indiatimes.com/city/ahmedabad/Continue-trial-even-if-accused-is-absent-Gujarat-HC-to-lower-courts/articleshow/53160786.cms (Last visited on February 2, 2021).
[19] Diaz v. United States, (1912) 223 U.S. 442.
[20] R v. Jones, (1972) 2 All E R 731.
[21] The Criminal Code, Section 544.
[22] R v. McHardie, (1983) 2 NSWLR 733.
[23] R v. Parakau, (2002) DCR 699.
[24] The Code of Criminal Procedure 1898, Section 339B.
[25] Poitrimol v. France, (1994) 18 EHRR 130.
[26]Supra note 7.
[27] Legal Correspondent, Committee For Reform In Criminal Law To Start Online Consultation Soon, The Hindu, July 1, 2020, https://www.thehindu.com/news/national/committee-for-reform-in-criminal-law-to-start-online-consultation-soon/article31958256.ece (Last visited on February 2, 2021).