Author: Atif Pathan

Introduction

The CrPC defines the “proclaimed offender” (or “PO”) under Section 82. Under Section 82, the Court can issue warrant of arrest if an accused person fails to make an appearance during the investigation or trial. The individual in question is officially designated as an offender and the relevant law enforcement agencies have a duty to apprehend and present him before the Court as part of a PO procedure. The publication of the names and information of the accused person in newspapers, designating them as perpetrators has been dealt extensively under the above mentioned provision.^[1]

When Can The Court Issue A Proclamation Against The Accused?

When the Court has grounds to suspect that the accused person may flee or refuse to appear in Court despite issuing summons for his appearance, a warrant of arrest may be issued. There is probable cause to think that the accused has fled or is hiding in order to evade the execution of the arrest warrant, which has been issued by the Court. The Court has the authority to seize the accused’s property and issue a formal proclamation ordering his appearance in Court. If the accused person still does not show up in Court after the proclamation, the Court may seize his or her assets, which would then belong to the state government. The Sections 82–86 of CrPC have addressed these requirements.

Judiciary and law enforcement authorities have a potent weapon under Section 82 of CrPC to prevent accused persons from evading punishment. If a court suspects that an individual wanted by them has fled or is hiding, making it impossible to carry out the warrant’s execution, the Court may make a formal proclamation. The individual will be required to appear before the Court at the designated location and time by the proclamation. At least thirty days must pass from the date of publication of such proclamation to the appointed time to appear before the Court. At this point, the accused might choose to present themselves before the appropriate authorities or the Court.

Whether or not evidence has been procured, the court may make a written proclamation against an accused person if there are grounds to think that the individual against whom a warrant has been issued has gone into hiding or has absconded so that the warrant cannot be implemented. It was observed in “Rohit Kumar alias Raju v. State of N.C.T., Delhi”^[2], that a warrant of arrest must have been previously issued by the Court before an action may be brought under “Section 82 of the CrPC”. In order for the Magistrate to revoke a warrant, it is necessary to provide evidence that the individual sought has either absconded or is hiding.

Section 174-A of the IPC was added by the Criminal Law (Amendment) Act of 2005. This sentence specifies imprisonment upto three years may be imposed on an offender who does not comply with the provisions of a proclamation issued under “Section 82 (1) of the Act”. A person faces a fine and seven years of jail if they fail to comply with the proclamation made under the offences listed in Section 82 (4) of CrPC after they have been declared as a PO.

Impact and Manner of Proclamation

The proclamation must be read aloud in a prominent location within the town or village where the person usually lives, attached to an easily noticeable part of their house or homestead, or posted in a prominent spot in the city or town. A copy must also be placed on display in the premises of the Court. Additionally, the Court has the authority to direct the publication of a copy in a daily newspaper in the person’s usual place of residence if it deems it appropriate. The publication of the proclamation on the specified day and compliance with the criteria of Section 82 may be shown conclusively by a written proclamation issued by the Court. When a person is being held on suspicion of a crime punishable by any of the following sections of the IPC, 1860: “302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459, or 460”, the proclamation is to be published under Sub-section (1) and Sub-section (4) of Section 82 applies when the person fails to appear and thus declared as PO.

To address the delays created by the accused person’s absence during trial, the Supreme Court proposed a method in 2017 to try absconding accused persons in absentia. W.r.t this issue, many high courts have adopted varying stances, including those of “Gujarat, Delhi, Jharkhand, and West Bengal”. While trying to codify in absentia trials, it is important to remember that an accused person has the right to a fair trial. At present, the CrPC permits the taking of evidence even when the accused are not present, but it does not permit the completion of trials or the pronouncement of verdicts against those who have fled the country. The CrPC achieves a compromise in this regard by protecting the right to defense of an accused person while enabling trials to proceed against those who have been arrested and making use of evidence obtained during trials against those who have absconded.^[3]

Before a court proceed with a trial without the accused present, three requirements must be satisfied according to the Act. The first is that, under Section 84(4), the accused is proclaimed as an offender. Second, in order to avoid being tried, they have run away. Thirdly, their arrest is not imminent. A PO is considered to have surrendered their right to be present for their trial whenever certain essentials are satisfied. Once the reasons have been documented in writing, the trial may continue as if the reasons had been presented in person.

To be tried in absentia, one must be a PO. So long as state governments do not opt to notify absconders listed in Section 84 and expand this process to them, trials under Section 356(1) will only be able to include those accused of serious crimes. The State runs the risk of arbitrary action if it has unfettered authority to notify offenses for in absentia proceedings. 4. Landmark case laws

• In “Sanjay Bhandari v. NCT of Delhi”^[4], the Delhi High Court dismissed the prosecution’s assertion that a proclamation makes a person a “PO” regardless of Section 82 (4). The Court’s interpretation of Section 82 (1) allows a proclamation only against a person who

has left or gone into hiding after a court order. Only Section 82 (4) may make someone a proclaimed offender, and it only applies to individuals charged under the particular IPC provisions therein. Section 82 (4) protects the investigation of severe crimes. In the Sanjay Bhandari case, the High Court determined that lesser crimes do not qualify for such safeguards. A court statement went on to say, “The legislature cannot have intended for such adverse consequences to automatically be drawn to someone whose less serious offences are listed in Section 82(4), but for someone whose serious offences are listed in Section 82(4), they would only be drawn after the safeguard in Section 82(4) has been followed.”

• “Arun Kumar Parihar v. State”^[5], involved an FIR u/s “406 (criminal breach of trust), 420 (cheating), and 120B (criminal conspiracy) of the IPC, 1860”. A person cannot be designated a “proclaimed offender” under “Section 82 (4) of CrPC”, according to the Delhi High Court’s ruling. The individual is charged with offences u/s “406, 420, and 120B of IPC”. Since the Investigating Agency’s intended legal provisions do not fall within the purview of Section 82 (4), the Delhi High Court reversed the first instance court’s order and ruled that the applicant cannot be declared a proclaimed offender. “Sanjay Bhandari v. State” was the primary precedent that Judge Anu Malhotra used to reach the conclusion. In the Sanjay Bhandari case, Judge Sanjeev Sachdeva’s single Court ruled that only the crimes listed in Section 82 (4) are eligible for the proclamation under that provision. Due to the inadequacy of the offences in question, the Delhi High Court invalidated the decision to declare an individual a PO.
• In “Inder Mohan Goswami v. State of Uttaranchal”^[6], the Court referenced a procedure for restricting individual liberty, noting that “Article 21 of the Constitution” guarantees every citizen the right to life and personal liberty. Additionally, the court ruled that the appropriate court may limit this privilege with a valid and reasonable justification, which must be stated when the proclamation order is issued. In order to determine the basis for restricting individual liberty, the court considered the matter of the summons and legal notice being sent to the wrong address, which resulted in the complaint being filed in violation of Section 138 of the NI Act. The Court expressed the opinion that any complaint under Section 138 should have been filed strictly according to the procedure provided in Section 138 of the NI Act. It would seem that neither the complainant nor the Subordinate Court had attended to the mandatory statutory term, the Court further noted. In accordance with Section143(3) of the NI Act, the Court has ruled that all trials conducted under this Act must be completed as soon as feasible and no later than six months from the date of the complaint’s submission. The Bench decided it was inappropriate to leave the petition standing any longer and granted the petitioner permission to appear before the relevant court on a specified date. The court also said that the petitioner would be granted liberty to participate in the proceedings and that the coercive measures, including the proclamation order and the order in question, would be stayed until the petitioner’s surrender on the specified day.

Difference between proclaimed offender and person under CrPC

Difference between proclaimed offender and person has been made in the legal and procedural frameworks enacted to deal with those who try to abscond and avoid justice. By outlining specific steps to take in each case, the CrPC protects the rule of law and deals with varying degrees of disobedience to court orders.

• A person is considered as PO under the CrPC if a court has officially declared him to be such under Section 82(4). If the subject of a warrant (accused person) has gone into hiding or has otherwise evaded capture, the proclamation will be made u/s 82(1). Several legal procedures must be followed in order to declare an individual as a PO publicly. These procedures include the issuing of a warrant, the accused’s failure to appear before the Court, and the following proclamation. Public reading of the proclamation in the town or city where the accused lives, its attachment to an easily noticeable portion of the accused’s dwelling, and possible publication in the official gazette and local media are all requirements mandated by the Court. There is a 30-day period from the date of publication, during which the accused must appear in Court. If this is not done, the accused’s property may be attached under Section 83 of the CrPC.
• One difference between a “proclaimed person” and a “proclaimed offender” is the severity of their non-appearance and disobedience of the court’s order. An individual who evades arrest and legal proceedings leads to hindering of justice. So, it requires a stricter approach to deal with it, maybe including publicizing their info and attaching assets thereby. Regardless of whether they are accused of a crime, proclaimed persons are obligated to follow the judicial process and appear in the Court before the stipulated time gets lapsed.^[7][8]
• However, the Court stresses equitable treatment within the law for the proclaimed persons, who have not been proven guilty. In “Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar”⁸, the Supreme Court stressed the rights of detainees awaiting trial and the necessity for fair treatment and swift trials. This landmark ruling highlighted the structural issues facing undertrial inmates and ordered adjustments to preserve their rights, demonstrating the Court’s protective stance toward non-fugitives.
• While PO have different penalties than proclaimed persons, the CrPC also allows for absentia punishments for them. Under Section 299 of CrPC, the judge is empowered to record an evidence while the accused is fleeing; such evidences will be beneficial when after some time the accused is located and arrested. This rule allows judicial processes to continue without the accused and assure the attendance of him sooner.
• POs have plethora of legal and social consequences that go beyond procedural issues, as offender’s reputation in the society may stigmatize and make legal aid difficult, among other social and legal effects. The stringent provisions prohibit evaders from harming justice, therefore proclamation and attachment of property strengthen the legal system by imposing a penalty on the absconders and acts as a realistic tool to ensure compliance.
• Under the CrPC, those who participate in judicial procedures get legal protections and defense opportunities. The CrPC protects individual rights with bail, a fair trial, and legal representation. This distinction between “Proclaimed Offenders and Persons” emphasizes the CrPC’s dual role of protecting court system and punishing lawbreakers by taking severity of non-compliance into consideration.^[9]

Conclusion

Arrests are the duty of the police station located where the criminal lives. There is no need for a warrant or magistrate’s order to apprehend a PO; any police officer may do so. The Police Superintendent reviews the persons listed as Proclaimed Offenders and their cases on a quarterly basis. After consulting with the District Magistrate and the SP of the district in which the PO was declared, their names are circulated everywhere. The name is removed from the record only when the offender is taken into custody on suspicion of an offence. Then, a notification is made to both the local police station and the district where the accused person resided in order to remove his name from the registry.

The Court has the authority to express its displeasure and disclose the consequences when the concerned offender subjected to proclamation under subsection (1) is facing charges under certain sections of the IPC (e.g., “302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 499, 459 or 460”) refuses to appear at the specified place and time required by the proclamation.

Finally, a person is considered a proclaimed offender if he continues to avoid court appearances after the issuance of a warrant against him. If a person fails to appear in Court for any offence again and again, then it is considered that he has committed the crime. Therefore, the CrPC concisely mentions every method and scenario pertaining to the POs, including the situation where they may escape and what must be done in such a case.

References

• Prabha Unnithan, Crime and Justice in India (SAGE Pub., 2013).
• Varun Sharma, “Proclaimed Person and a Proclaimed Offender”, LEGAL ERA (2021).

Avtar Singh, The Code of Criminal Procedure (Lexis Nexis 2011).

[1] Prabha Unnithan, Crime and Justice in India (SAGE Pub., 2013).

[2] (2007) 143 DLT 744.

[3] Varun Sharma, “Proclaimed Person and a Proclaimed Offender”, LEGAL ERA (2021).

[4] CRL.REV.P. 223/2018.

[5] Crl.M.C.No.863/2021.

[6] (2007) 12 SCC 1.

[7] Ibid.

[8] SCC (CRI) 40.

[9] Avtar Singh, The Code of Criminal Procedure (Lexis Nexis 2011).