The Deemed Waiver: What Section 356 Puts in Place of the Accused

A criminal trial is built around a person who is in the room. Section 308 of the Bharatiya Nagarik Suraksha Sanhita carries forward the rule Section 273 of the Code of Criminal Procedure stated: except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his advocate. Everything the accused does at trial — plead, instruct, identify what is false in a witness's account, answer the circumstances put to him — assumes he is there to do it.

The absconder has always been the case that does not fit. The Code's answer to him was narrow, and is reproduced almost unchanged in Section 335 of the Sanhita. If it is proved that an accused has absconded and there is no immediate prospect of arresting him, the competent court may examine the prosecution witnesses in his absence and record their depositions; those depositions may be given in evidence against him on his arrest, and even then only if the deponent has since died, become incapable of giving evidence, cannot be found, or cannot be produced without unreasonable delay, expense or inconvenience.

That provision does not try the absconder. It preserves a record against the day he is caught, on the assumption that the trial still lies in the future and still requires him. Section 356 abandons the assumption. It permits the inquiry, the trial and the judgment to be completed while the accused is elsewhere. The distance between the two provisions is the distance between keeping evidence and reaching a verdict.

A waiver that nobody makes

The hinge of the section is one clause in sub-section (1). Where a person declared a proclaimed offender, whether or not charged jointly, has absconded to evade trial and there is no immediate prospect of arresting him, that "shall be deemed to operate as a waiver of the right of such person to be present and tried in person". The court is then to record reasons in writing and proceed with the trial "in the like manner and with like effect as if he was present", and pronounce judgment. A proviso bars commencement until ninety days have lapsed from the framing of the charge.

The word waiver is not decorative. A waiver is normally the act of the person who holds the right: voluntary, made by someone who knows what he is giving up, and his own. None of that is true here. The absconder has not addressed himself to the question of presence at all; he has removed himself from reach, which is a different act. The section closes the gap by deeming — treating one piece of conduct as though it were another, because the consequence attached to the second is the one the legislature wants.

Once that is seen, sub-section (2) stops looking like a checklist. Before proceeding, the court must be satisfied that four things have been done: two consecutive warrants of arrest have gone out at an interval of at least thirty days; notice has been published in a national or local daily circulating at the place of his last known address, requiring him to appear and telling him the trial will begin in his absence if he does not appear within thirty days; a relative or friend, if any, has been informed that the trial is commencing; and the information has been affixed to a conspicuous part of the house or homestead where he ordinarily resides, and displayed at the police station of the district of his last known address.

Four channels — the process server, the press, a private individual connected to him, and two physical locations — with nothing in common except their object, which is to make it as difficult as the machinery allows for the absconder to be genuinely ignorant that a trial is starting without him. That is what a deemed waiver needs in order to be defensible. The fiction in sub-section (1) is only as strong as the notice in sub-section (2), and a court running through those four items is assembling the factual basis on which the fiction rests.

The proviso raises a question the section does not answer. The ninety days run "from the date of framing of the charge", but framing a charge is not a purely internal act: in a sessions case the charge, once framed, is to be read and explained to the accused, present physically or through audio-video electronic means, and he is then asked whether he pleads guilty or claims to be tried. That step presupposes the presence Section 356 exists to dispense with. The non-obstante clause at the head of sub-section (1) is wide enough to carry a court past the difficulty. But the proviso does more than permit a charge to be framed in absence — it makes the date of framing the start of a mandatory period, and therefore a date a trial court must fix and record. The mechanics of fixing it are left to be worked out.

Where the gravity threshold actually sits

Section 356 applies, on its face, only to a person "declared as a proclaimed offender". That status is not created by Section 356. It is created by Section 84, whose relevant sub-sections are very far apart in reach.

Sub-section (1) allows any court that has reason to believe a person against whom it has issued a warrant has absconded or is concealing himself to publish a written proclamation requiring him to appear, at a time not less than thirty days from publication. There is no offence-gravity threshold in it at all; it reaches anyone against whom a warrant has issued. Sub-section (4) is where the threshold appears: only where the proclamation concerns a person accused of an offence punishable with imprisonment of ten years or more, imprisonment for life, or death, and he fails to appear, may the court — after such inquiry as it thinks fit — pronounce him a proclaimed offender. That status is thus a judicial finding on a defined class of offences, not an administrative label.

The limitation confining trial in absentia to the gravest cases is therefore not written into Section 356 at all. It sits in Section 84(4), a chapter away, and reaches Section 356 only through the phrase "declared as a proclaimed offender".

Sub-section (8) then provides that the State may, by notification, extend the provisions of the section to any absconder mentioned in sub-section (1) of Section 84. Read against that scheme, the power is substantial and easy to describe wrongly. It does not extend the section to proclaimed offenders; they are covered already and need no notification. What it reaches is the wider class of Section 84(1) — persons proclaimed on a warrant, without regard to the punishment prescribed for the offence. The ten-year threshold is removable by executive notification, without a return to the legislature.

At least one State appears to have used the power: a notification of August 2025 by the Government of Maharashtra has been reported. I have not seen the gazette text and do not rely on its contents. The point is only that sub-section (8) is live rather than theoretical, and that which offences may be tried in the accused's absence has been made, by the design of the section, an executive question rather than a legislative one.

What stands in for the accused

Sub-section (3) provides that where the proclaimed offender is not represented by an advocate, he shall be provided with one for his defence at the expense of the State. That is a real answer to the obvious objection, but it is worth being exact about what it can supply. Counsel so appointed can test the prosecution case as it stands — on internal contradiction, improbability, the documents, the investigation. What he cannot do is the part of a defence only the client can originate. He has no instructions: he does not know what the accused says he was doing, which witness is lying about which fact, or which document exists but has not been filed. His defence is confined to material the prosecution has chosen to produce.

One stage of the ordinary trial cannot be performed at all. Section 351 carries forward the power to examine the accused, including the mandatory examination after the prosecution evidence closes, at which the circumstances appearing against him are put to him and he is given the opportunity to explain them. That stage exists because a criminal court is expected, before convicting, to have heard the accused's own account of the evidence. Under Section 356 there is nobody to put the questions to. The direction to proceed "as if he was present" cannot produce an answer; it can only authorise the court to move past the place where the answer would have gone.

Sub-section (5) adds a requirement of distinctly modern character: the deposition and examination of witnesses may, as far as practicable, be recorded by audio-video electronic means, "preferably mobile phone", the recording kept as the court directs. If the convicted person may later surrender and appeal, an appellate court will be asked to assess a trial no accused ever watched. A transcript records what was said; a recording preserves how it was said, which is material an absent man's advocate would otherwise have no way of reaching.

The man who comes back

Two sub-sections deal with the absconder who reappears, and read together they leave him a narrow opening.

Sub-section (4) provides that where a competent court has examined prosecution witnesses and recorded their depositions, those depositions shall be given in evidence against the proclaimed offender — with a proviso that if he is arrested and produced, or appears, during the trial, the court may, in the interest of justice, allow him to examine any evidence taken in his absence. Two things are worth noticing. Section 335 admits depositions recorded in an absconder's absence only where the witness has since become unavailable; sub-section (4) carries no equivalent condition. And the proviso is permissive: a man who returns in the middle of his own trial does not get the evidence reopened as of right, he gets an application, decided on the court's view of the interest of justice.

Sub-section (6) then provides that once the trial has commenced, voluntary absence shall not prevent it continuing, including pronouncement of judgment, even if the accused is arrested and produced or appears at the conclusion of the trial. Nothing in Section 356 provides for a re-trial. A person who surrenders after the evidence has closed arrives at a proceeding with no remaining stage he can occupy.

Both features point the same way. The section is drafted so that a trial properly begun is not undone by the accused's later change of mind. Its safeguards are almost entirely front-loaded — the ninety-day wait, the four notice channels, State counsel — and very little is held in reserve for the man who comes back.

An appeal that opens on surrender

Sub-section (7) is the most unusual provision in the section. No appeal lies against a judgment under Section 356 unless the proclaimed offender presents himself before the court of appeal; and by the proviso, no appeal against conviction lies after the expiry of three years from the date of the judgment.

The first limb turns the right of appeal into an instrument of compulsion. A right of appeal in Indian criminal law is statutory rather than inherent — Section 413 provides that no appeal lies from any judgment or order of a criminal court except as provided by the Sanhita or another law — so a condition attached to it is a condition on something the legislature was free to shape. What sub-section (7) does with that freedom is to route the only available challenge through the appellant's own reappearance. The judgment is not merely a verdict; it is a standing reason to come back, because coming back is the sole way to attack it.

The proviso is not a period of limitation in the ordinary sense. Limitation runs against a person who could have filed and did not. Here he cannot file at all until he presents himself, so the three years measure something else: how long the State is prepared to keep the challenge available before the conviction becomes unassailable by the passage of time alone.

Two textual points are worth recording, as readings of the words rather than settled positions. The opening limb bars an appeal "against the judgment under this section", not merely an appeal against conviction — and a trial in absentia can end in acquittal. On the literal words, an appeal against such an acquittal would also require the acquitted absconder to present himself: a condition the appellant, whether the State or a victim exercising the right conferred by the proviso to Section 413, has no means of satisfying. And the three-year proviso is confined to an appeal "against conviction", leaving an appeal directed only at sentence unaddressed.

The repair made to the law of evidence

Section 24 of the Bharatiya Sakshya Adhiniyam reproduces the familiar rule that where more persons than one are being tried jointly for the same offence, a proved confession by one of them affecting himself and another may be taken into consideration against that other as well. The rule has always turned on the joint trial — and a trial held in the absence of an absconder is not, in the ordinary sense, a joint trial with the co-accused who are present.

Explanation II to Section 24 supplies the missing element by deeming: such a trial "shall be deemed to be a joint trial" for the purpose of that section. Section 30 of the Indian Evidence Act, which Section 24 replaces, carried only one Explanation, on the meaning of "offence". This one is new — a second deeming, in a second statute, doing repair work made necessary by the first. The assumption of presence sits underneath a good deal of law that never mentions it.

Conclusion

Read whole, Section 356 makes one decision and then builds the machinery to support it. The decision is to reclassify presence. In the scheme Section 308 describes, the accused's presence is a condition of the proceeding's validity: evidence taken in his absence is, subject to express exceptions, not properly taken at all. Section 356 treats presence instead as a personal right of the accused — valuable, protected by an elaborate notice regime, but capable of being forfeited by conduct, and once forfeited, no bar to anything.

That is a coherent position, and close to the one most legal systems reach when they confront an accused who cannot be produced. What distinguishes this version is where it places its safeguards. It invests heavily in notice before the trial and very little in correction afterwards: no re-trial, a discretionary and narrow opportunity to revisit evidence for the man who returns mid-trial, and an appeal that opens only on surrender and closes after three years. A system that front-loads its protection in this way has decided which error it would rather risk. It has judged the greater danger to be the absconder who is never tried at all, and accepted in exchange the risk of a completed conviction against a man who never knew.

Whether the four channels of sub-section (2) are enough to make that exchange sound is not a question the text can answer. It will be answered case by case, in the reasons sub-section (1) requires a trial court to record before it begins.

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Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.