In a latest development in the 26/11 Mumbai terror attacks case, the Mumbai Police has officially initiated the process to conduct an 'in absentia' trial against six absconding Pakistani handlers, including Lashkar-e-Taiba (LeT) masterminds Hafiz Saeed and Zaki-Ur-Rehman Lakhvi, for their roles in the attack. The police have sent a letter to special public prosecutor Ujjwal Nikam to execute the filings.
Speaking on the development, Nikam said, “A proclamation against the six absconding accused was issued by the trial court. On Friday, once a report is issued on the proclamation, we will initiate the process to proceed with the trial against them in absentia.”
What Is Trial In Absentia?
Trial in absentia, which refers to conducting a criminal trial without the physical presence of the accused, is permitted in India under Section 356 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. It marks the first time that the provision has been triggered in a high-profile cross-border terrorism case to secure judicial convictions against proclaimed offenders. The section allows courts to conclude trials and pronounce judgments against “proclaimed offenders” who deliberately evade arrest for grave crimes.
India has undertaken trial in absentia as most of the terrorists accused by India in the 26/11 Mumbai terror attacks remain in Pakistan. They have not been extradited yet. However, several legal safeguards must be met before invoking Section 356. These include allowing a minimum period of 90 days to elapse from the date of framing the charge. Two consecutive arrest warrants within an interval of at least 30 days need to be issued. Publishing a notification in a local newspaper, and utilising various other means to serve notice is also mandatory.
It is also required to ensure that the accused is not kept unaware of the proceedings. Information about the trial must be widely publicised. Notably, the absence of the accused does not grant the prosecution an automatic conviction, which implies evidence must still be presented and tested according to law.
What Happens After Trial Is Completed?
When a court completes a trial in absentia for an accused person residing in another country, it holds the authority to pronounce a formal judgment and conviction. However, as the individual remains overseas, enforcing such a verdict relies on diplomatic negotiations, and multilateral legal procedures. It doesn't mean immediate physical custody.
In Saeed's case, while a conviction delivered in absentia may establish legal guilt in India, it cannot force Pakistan to hand over him. Enforcing the sentence depends entirely on international extradition treaties and cooperation from Pakistan ultimately.
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What's The Case?
Between November 26 and 29, 2008, a terrorist attack struck Mumbai, leaving 166 people dead and hundreds injured. Ten terrorists from Pakistan had opened fire at several famous landmarks, including the Taj Mahal Palace hotel, Oberoi-Trident hotel, Chhatrapati Shivaji Maharaj Terminus railway station, Nariman House, and Cafe Leopold. While security forces killed nine of the attackers during the siege, Ajmal Amir Kasab, was caught alive.
Kasab was put on trial, found guilty, and subsequently executed in 2012. However, the investigation into the case continued, with India tracing the conspiracy to Pakistan. The six accused facing the probe are Hafiz Saeed, Zaki-ur-Rehman Lakhvi, Sajid Mir, Mazhar Iqbal (alias Abu Alqama), Asim (alias Abu Qahafa), and Major Abdur Rehman Pasha.