Can Justice Be Done without the Accused?

Can justice really be served if a defendant is absent from all stages of the trial? If a defendant is absent from their case, but there are plenty of people in the courtroom, including the Judge and prosecution, can they be considered to have received justice?

Sometimes people will try to avoid being arrested and will go into hiding. This can cause problems with justice as victims can wait years to see any justice being done. However, should people be able to get away with denying themselves justice? Should we allow the state to convict people without giving them a fair chance to defend themselves?

In Bangladesh, there is a legal basis for trying someone in absentia. Section 339B of the Code of Criminal Procedure, 1898 states that if there are reasonable grounds for believing that the accused has gone into hiding or is lying low and cannot be arrested to attend trial and there is no immediate possibility of arresting them, the court can order them to appear via an advertisement in a prominent Bangla Daily newspaper. If they do not appear within the set timeframe then they can be tried in their absence. They can also order the advertisement to be published on government websites. 

With the amendment in 2026 this is a key point. This section used to be covered under sections 87 and 88 (proclamation and attachment of property). However, the amended section now specifically states that these sections are overridden. 

It also adds that an advertisement must be placed in a newspaper. It can also be placed on government websites at the discretion of the court. Whilst this makes the process easier, does that mean they have actually been properly notified?

Whilst placing an advertisement in the newspaper may meet the requirements of the law, the defendant may not have actually been made aware of the case. If they live overseas or do not have easy access to newspapers then they may not actually be aware of their case. So just because they have met the procedural requirements they should not be assumed to have intentionally avoided trial.

There are also constitutional issues. Article 31 covers the right to protection by law, Article 32 covers the right to life and personal liberty and Article 35(3) covers the right to a speedy and public trial before an independent and impartial court for everyone charged with a criminal offence. Whilst this does not specifically mention trying someone in absentia, it shows how important a fair trial is. A speedy trial should not mean that they don’t have a fair defence.

Trial in absentia should not be removed but instead we should make sure it is carried out responsibly. The court should look at any evidence that the defendant intentionally went into hiding. They should ensure that reasonable steps have been taken to notify them and that they have access to legal representation.

This issue has been recognised by the courts. In the case of Md Shahidullah Miah vs The State and another (Criminal Revision No. 16 of 2021) the High Court Division looked at a situation where the defendant had been convicted after being tried in absentia whilst living in Saudi Arabia. The Court found that the procedural requirements had not been properly met under sections 87, 88 and 339B at the time. They overturned the conviction and ordered that the case be remitted so the defendant could cross examine the prosecution witnesses.

Whilst this judgement refers to the old version of section 339B, the principle still applies. We cannot ignore the procedural requirements when someone’s liberty is at risk. The Court also referred to the cases of Lal Mia v The State (42 DLR 15) and Balayet Howlader v The State (49 DLR 520) to show how important the procedures are.

Internationally, there is also a right to a fair trial under article 14 of the International Covenant on Civil and Political Rights. The UN Human Rights Committee have emphasised the importance of taking proper steps to notify the defendant of the charges against them in General Comment No-32, paragraph 31.

Trial in absentia should not be removed but instead we should make sure it is carried out responsibly. The court should look at any evidence that the defendant intentionally went into hiding. They should ensure that reasonable steps have been taken to notify them and that they have access to legal representation. Where possible, the advertisement should be accompanied by an advertisement online that is easily accessible and other methods of lawful communication.

Ultimately, criminal justice is not simply about delivering judgments; it is about delivering legitimate judgments. An accused person should not escape accountability by deliberately avoiding the courtroom. At the same time, the power to try someone in their absence must never become a shortcut around natural justice.

The empty dock should not become an obstacle to justice, but neither should it become a place where the right to be heard disappears. Justice must not wait forever for someone who deliberately refuses to appear. But before delivering a verdict, the court must be satisfied that the accused was given a fair opportunity to be heard.