Anjum Sadia: A criminal trial is seen as a confrontation between the accused in the dock, the charge pronounced by the prosecution, and the judge listening attentively. However, in Bangladesh as elsewhere, the dock may remain vacant from time to time. Can the court proceed to try, convict and sentence the absent? Answering this question, the Code of Criminal Procedure of 1898, provides a scheme balancing swiftness and justice.

Firstly, the Code specifies who tries what. Offences are tried by the Magistrate either in summons cases or in warrant cases. In a warrant case, the charge is framed; the prosecution witness is examined, cross-examined, and the accused questioned in regard to evidence followed by arguments and verdict. Serious crimes, including murder, are tried by the Court of Session presided over by a Sessions Judge, after being referred by the Magistrate. The principle is clear: the heavier the sentence, the more guarantees. Thus, a death penalty awarded by the Court of Session cannot be executed until confirmed by the High Court Division.

But then, it cannot apply the same process to all small matters. With many cases in our courts, delay becomes a constant wrong. The Code meets this challenge through summary trials, which take place through specially designated Magistrates in case of minor offences. This process is simplified, having reduced documentation, and is limited as well: a summary trial cannot lead to any punishment more than three months of imprisonment. The process helps the complainant and the accused equally, but it is done for a good reason.

The most controversial clause is trial in absentia. The Code provides for the principle that evidence should be collected in the presence of the accused since an individual should be aware of what is being alleged against him so as to respond to it. However, an accused should not be able to evade the law by fleeing; this would mean allowing witnesses to die, evidence to vanish and victims to wait forever. Section 339B of the Code thus allows trial of an accused who fled, but after ensuring some requirements are met. Warrants should have been issued; and notices have been served publicly through publication in national dailies to attend the proceedings. If he fails to do so, then the case can proceed, while the court appoints state-funded defense counsel on behalf of the absent person. Even Bangladesh has tried high-profile accused persons in absentia through its International Crimes Tribunal.

The problem is clear. Those who flee from the police may not be guilty, and a person who was not warned can be convicted without ever having his case heard. This is why the legal criterion of deliberate absconding is one that needs to be proved, not assumed. The person thus convicted is not without any remedies, and the right to appeal still stands.

Each and every trial, no matter how it is carried out, comes to an end with a judgment. In law, a judgment is more than “guilty” or “not guilty”. It has to be made in open court, state what issues have been raised and decided, and give the reasons therefore. A conviction has to specify the crime and punishment, and an acquittal has to order the release of the accused. The requirement of stating reasons is the mainstay of accountability: it allows the public to know the result and the appellate court to test it.

Well, can there be justice without a body? There can be justice without a body, but only after the state makes its best efforts to make sure it gets one first. In order to fulfill this goal of speedy and fair trial in which people can have faith, it is necessary to have an institutionalized trial process, a critical judgment process by the Sessions Judge, efficient summary trials, a cautious approach in conducting trials in absence, and a well-reasoned judgment. The rights of citizens are established by these norms.

Writer: Anjum Sadia.  Law Student, Bangladesh University of Professionals (BUP)