Published: 01:51 AM, 19 October 2026
When the Accused Absconds, Does Justice Wait?
Jannat Afrin Muslima
In the year 1980, a District Judge in his court, stares at an empty chair that is reserved for the accused. Months have passed but the person charged with a serious offence absconded after getting bail. Witnesses have travelled from distant villages to testify and heard that the hearing is adjourned again. The victim’s family had already waited years for justice and then began to wonder whether the case will ever move forward. This is not an isolated story. It repeated itself in courtrooms across the country and opened the door for the creation of trial in absentia in Bangladesh. Trial in absentia refers to a criminal trial in absence of the accused. Generally, the legal system prohibits a trial to go forward without the physical presence of the accused in court. Ordinarily a trial in absentia is treated as null and void. This protects the fundamental principle of natural justice which is “Audi alteram partem”. It means letting the other party be heard. There can be no conviction in the absence of the accused because evidence must be taken in his presence, and he must have a chance to produce his arguments.
But the story of the absconding accused shows why the concept of trial in absentia is necessary for our justice system. If an accused could avoid trial forever simply by hiding or absconding, the criminals would escape punishment through it and the victims and witnesses would have to bear the cost of endless delay, which includes the risk that a witness may die or forget crucial details before the case is ever heard. This brings the maxim “Justice delayed is justice denied” to come into effect. To address this mischief, in 1982, Section 339B was inserted into the Code of Criminal Procedure, 1898 as an exception to the general rule. Section 339B allows a court to proceed with a trial without the physical presence of the accused in the court but requires some strict conditions to be satisfied. Firstly, the court must follow the applicable requirements of Section 339B(1), notwithstanding anything contained in Sections 87 and 88 of the Code. Secondly, the court must have reason to believe that the accused has absconded or concealed himself and he cannot be arrested and produced for trial, and that there is no immediate prospect of arresting him. Only then the court, by taking cognizance of the offence, may pass an order to be published in at least one national daily Bengali newspaper of wide circulation, directing the person to appear before the court within a specified period. If the accused fails to comply with such order, the court shall begin the trial in absentia.
Section 87 of the CrPC 1898 talks about how the proclamation shall be made. When the court believes a person has absconded or concealed himself to avoid execution of a warrant or arrest, it may publish a written proclamation requiring him to appear at a specified time and place, which is not less than thirty days from the date of publication. This proclamation must be read out publicly in the town or village where the accused person resides and then a copy of the proclamation shall be affixed to a conspicuous part of his house or homestead, and the courthouse to bring the matter to his knowledge. Then by applying Section 88 of the CrPC 1898, the court adds further pressure through attachment of the accused’s property. The court may order attachment within the local area, or beyond it with the endorsement of the District Magistrate, Chief Judicial Magistrate, or Chief Metropolitan Magistrate. In terms of movable property such as debts, it may be attached by seizure, by appointment of a receiver, or by prohibiting delivery of the property to the accused. In terms of immovable property, it may be attached by the Collector, or by taking possession, or by appointing a receiver, or by prohibiting payment of rent to the accused. Previously, Section 339B(1) made a trial in absentia conditional on compliance with Sections 87 and 88, and required publication in at least two national daily Bengali newspapers. This has changed. By the Code of Criminal Procedure (Second Amendment) Ordinance 2025, later replaced by the Code of Criminal Procedure (Amendment) Act 2026 (Act No XI of 2026), Section 339B(1) was substituted so that it now operates notwithstanding anything contained in Sections 87 and 88. As a result, proclamation and attachment are no longer preconditions to a trial in absentia, and the court may proceed directly to an order published in one national daily Bangla newspaper, which it may additionally direct to be published on official government websites. Sections 87 and 88 themselves remain in the Code for their ordinary purpose of compelling the appearance of an absconding person against whom a warrant has been issued.
Now let’s return to the story that inaugurated this discussion. The Appellate Division of the Supreme Court of Bangladesh has clarified how Section 339B actually operates in particular situations. In Md. Nurul Absar v. The State, reported at 16 MLR (AD) 423, an accused had been released on bail and then absconded. The Appellate Division held that, once an accused has already appeared before the court or been released on bail, and thereafter absconds, only Section 339B(2) applies. The Court reasoned that such an accused who already had notice of the proceedings cannot demand the similar protective formalities required for a person who was never brought before the court at all. Therefore, the trial in absentia without a gazette notification shall not be illegal. This exceptional provision is a carefully structured solution for ensuring justice. The requirement of publication in a national daily newspaper, now supplemented by optional publication on official websites, exists to ensure that the trial in absentia is started only after reasonable public notice has been given to the accused to appear.
Jannat Afrin Muslima belongs to Department of Law, Bangladesh University of Professionals
(BUP), Mirpur
