Explained: Delhi's First Trial in Absentia Under BNSS

New Delhi, July 30: In a first for the national capital, a Delhi court is set to begin hearing arguments against alleged gangster Kapil Sangwan on Thursday without his physical presence in court, marking one of the earliest applications of the trial in absentia provisions introduced under the Bharatiya Nagarik Suraksha Sanhita (BNSS).

Sangwan, who has been declared a proclaimed offender and is believed to be living in London, is facing prosecution in a case registered under the Maharashtra Control of Organised Crime Act (MCOCA) for allegedly operating an organised extortion syndicate.

The proceedings before Special Judge Vishal Gogne at Delhi's Rouse Avenue Court are being closely watched, as they could become a landmark test of Section 356 of the BNSS, a provision that allows courts to continue criminal trials even when an accused deliberately evades the judicial process.

A First Under the New Criminal Laws

In an order dated July 9, Special Judge Gogne allowed the prosecution to proceed against Sangwan in his absence after holding that the statutory safeguards under Section 356 had been fulfilled.

The court observed that the State had complied with the legal requirements necessary for invoking trial in absentia and found no impediment to proceeding with arguments on charge.

Initially, the matter was scheduled for day-to-day hearings from July 27 to August 7. However, proceedings were deferred because the judge was on leave on July 27 and 28, while the Special Public Prosecutor was engaged in another matter. Arguments are now expected to commence on Thursday.

What Is Trial in Absentia?

The BNSS, which replaced the Code of Criminal Procedure (CrPC), introduced Section 356, allowing courts to conduct an inquiry, trial and even pronounce judgment against a proclaimed offender who intentionally avoids the judicial process.

Under the earlier CrPC, courts could record evidence in the absence of an accused under limited circumstances, but a full-fledged criminal trial could not ordinarily proceed without the accused being present.

The new provision seeks to prevent absconding accused persons from indefinitely delaying criminal proceedings simply by remaining outside the reach of law enforcement.

According to advocate Samridhi Dobhal, associated with the office of the Special Public Prosecutor:

"An accused who deliberately remains absconding and evades the judicial process cannot indefinitely hold up the trial merely by staying away."

Why Was Section 356 Invoked?

Before permitting the trial to proceed, the Delhi Police Crime Branch and the court undertook several procedural steps required under the BNSS.

According to court records:

• Two non-bailable warrants (NBWs) were issued against Sangwan in June and July 2026.

• Police were unable to execute the warrants as his Najafgarh residence remained locked.

• Notices regarding the proceedings were published in a national newspaper.

• Copies of the court notice were affixed at his residence.

• Police also informed one of his relatives about the proceedings.

The court noted that Sangwan had not been seen at his residence for a considerable period and had consistently remained unavailable.

Dobhal explained that trial in absentia is not automatic, and courts must first ensure that every procedural safeguard prescribed under Section 356 has been satisfied before allowing the prosecution to continue.

Legal Aid Counsel Appointed Despite Absence

Although Sangwan has not appeared before the court and currently has no private lawyer representing him, the court has directed the Delhi Legal Services Authority (DLSA) to appoint a legal aid counsel on his behalf.

The move reflects the balance sought by the BNSS between ensuring the progress of criminal trials and protecting the accused's right to legal representation.

What Happens If Sangwan Is Convicted?

Advocate Hritwik Maurya, also associated with the office of the Special Public Prosecutor, explained that if Sangwan is convicted during the trial and later arrested, he would not undergo a fresh trial.

Instead, he would be sent directly to serve the sentence imposed by the trial court, since the proceedings would already have concluded in accordance with Section 356.

Background of the Case

The present MCOCA case relates to an alleged organised extortion network.

Sangwan was arrested in 2016 but secured parole in 2019. Authorities allege that after being granted interim bail in another MCOCA case, he failed to surrender and has remained absconding since then.

Investigators believe he is currently based in London.

He faces more than two dozen criminal cases in Delhi and Haryana involving allegations of:

• Extortion

• Murder

• Land grabbing

• Organised crime

A Red Corner Notice was issued against him in June 2021.

Sangwan has also been named as an accused in the February 2024 murder of Haryana INLD leader Nafe Singh Rathee, allegedly linked to gang rivalry.

Political Link

Former AAP MLA Naresh Balyan has also been booked under MCOCA in the same case over alleged links with Sangwan. Balyan, who represented Uttam Nagar in 2015 and 2020, was arrested in December 2024 and remains in judicial custody.

Why This Case Matters

The proceedings against Kapil Sangwan represent one of the most significant tests of India's new criminal procedure laws. Courts have long struggled with trials stalled by absconding accused who flee the country or evade arrest for years.

By invoking Section 356 of the BNSS, the Delhi court is signalling that the criminal justice system may no longer allow proclaimed offenders to derail prosecutions merely by remaining beyond the reach of investigating agencies.

How higher courts interpret and scrutinise the use of this provision in future appeals will likely determine the scope and constitutional contours of trial in absentia under India's new criminal justice framework.