Why in News
🗞️ Why in News
In July 2026, a Jammu NIA court issued a non-bailable warrant against Lashkar-e-Taiba chief Hafiz Saeed in connection with the Pahalgam terror attack, in which 26 people were killed. The National Investigation Agency (NIA) is set to pursue a trial in absentia, the first major use of Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
A New Tool Against Absconding Fugitives
For decades, Indian courts could not conduct a full criminal trial against an accused who had absconded and placed himself beyond the reach of the justice system. Terror masterminds sheltering abroad, such as those behind cross-border attacks, could effectively stall proceedings indefinitely simply by refusing to appear. The BNSS, which replaced the colonial-era criminal procedure code, changes this by allowing a court to try, convict and sentence a proclaimed offender even in his absence.
The move against Hafiz Saeed in the Pahalgam case is the first prominent invocation of this power. The Government of India regards the Pahalgam attack as an act of cross-border terrorism, and the in-absentia route allows the Indian state to establish guilt on the record and build a legal foundation for extradition, asset action and international pressure, even while the accused remains outside its jurisdiction.
What Section 356 BNSS Provides
Section 356 permits a court to conduct a complete trial, deliver judgment and pass sentence against a proclaimed offender who has absconded and cannot be tried in the ordinary manner. Crucially, the law surrounds this power with strict safeguards so that in-absentia proceedings do not become a shortcut that erodes fair-trial rights.
The Safeguards
| Safeguard | Requirement |
|---|---|
| Gravity of offence | Punishable with at least ten years, life imprisonment or death |
| Repeated warrants | Two arrest warrants issued at least 30 days apart |
| Waiting period | A 90-day wait after the proclamation |
| Public notice | A public notice requiring the accused to appear |
| Right to defence | A court-appointed defence counsel for the accused |
These conditions ensure that the trial proceeds only after the state has made genuine, repeated and public efforts to secure the accused’s presence, and only where the crime is grave. The mandatory appointment of defence counsel preserves the adversarial character of the trial even when the accused is absent.
The Pahalgam Case Timeline
The NIA has moved methodically. It filed a supplementary charge sheet on 6 July 2026, strengthening the evidentiary record against the accused. The issuance of a non-bailable warrant and the invocation of Section 356 follow from this, setting the stage for a trial where the court will test the prosecution’s case even though Hafiz Saeed remains outside India.
The Constitutional and Fair-Trial Dimension
Trial in absentia sits at a sensitive intersection of two principles. On one side is the imperative of delivering justice and not letting terror fugitives escape accountability by hiding abroad. On the other is the fair-trial guarantee flowing from Article 21, which protects life and personal liberty and has been read to include the right to a fair trial. The right to be present at one’s own trial is ordinarily a core component of fair-trial rights.
The BNSS design attempts to reconcile the two. By requiring repeated warrants, a waiting period, public notice and defence counsel, the statute allows justice to proceed while preserving the essential procedural protections. The real test will lie in how courts apply these safeguards in practice, and whether in-absentia convictions withstand appellate and international scrutiny.
UPSC Relevance
GS Paper 2: Structure, organisation and functioning of the judiciary; issues relating to the criminal justice system; and the balance between individual rights and the security of the state.
Prelims pointers:
- Section 356 BNSS allows a full trial in absentia of a proclaimed offender.
- The BNSS replaced the Code of Criminal Procedure (CrPC), 1973, and came into force on 1 July 2024.
- It came into force alongside the Bharatiya Nyaya Sanhita and the Bharatiya Sakshya Adhiniyam.
- Safeguards: offence punishable with at least 10 years/life/death; two warrants 30 days apart; 90-day wait after proclamation; public notice; court-appointed defence counsel.
- The NIA filed a supplementary charge sheet on 6 July 2026 in the Pahalgam case (26 killed).
- Article 21 protects life and personal liberty and includes the right to a fair trial.
Mains question: “Section 356 of the BNSS introduces trial in absentia into Indian criminal law. Examine how the statute balances the right to a fair trial with the need to deliver justice against absconding terror fugitives.” (15 marks, 250 words)
Facts Corner
📌 Facts Corner, Knowledgepedia
- Event (July 2026): Jammu NIA court issued a non-bailable warrant against Hafiz Saeed; NIA to pursue trial in absentia in the Pahalgam attack case (26 killed).
- Legal basis: First major use of Section 356 BNSS (full trial of an absconding proclaimed offender).
- BNSS: Replaced the CrPC, 1973; in force from 1 July 2024 with the Bharatiya Nyaya Sanhita and Bharatiya Sakshya Adhiniyam.
- Safeguards: Offence of 10 years/life/death; two warrants 30 days apart; 90-day wait; public notice; court-appointed counsel.
- Case step: NIA supplementary charge sheet filed 6 July 2026.
- Rights context: Article 21 includes the right to a fair trial and presence at trial.
Sources: National Investigation Agency, Ministry of Home Affairs, The Hindu
Source: NIA Court Invokes Trial in Absentia Under BNSS Section 356 — Ujiyari.com | Free UPSC & State PCS Current Affairs
