This article is written by Udita Prakash, a student at UPES, Dehradun. This article talks about the proclaimed offenders and regulations dealing with the absconding of the proclaimed offenders.
Section 82 of the Code of Criminal Procedure talks about the “proclaimed offender” or “PO”. A Proclaimed Offender is the person absconding from the court proceeding where the court announces the particular individual as a transmitted offender and guides the concerned law enforcement authorities to capture the individual named in the proceeding and make him stand under the watchful eye of the court. A proclaimed offender (PO) procedure is a judicial process by which the person is declared a criminal and instructs the police officers concerned to arrest the person named in the proceedings and to show them to the court. It is also directed that the name and details of the declared criminal be published in newspapers, declaring him or her a perpetrator.
Consequences of being a proclaimed offender
If the accused does not appear in court after the bailable warrant has been issued, the court will issue a non-bailable warrant against the defendant under Section 70 of the Code of Criminal Procedure. Under Section 70, the court orders the police and gives them the power to arrest the accused anytime, and anywhere (including breaking open the doors and walls of their home or the place where they want to hide from arrest). If the accused does not want to appear in court even after the arrest warrants have been issued without bail, the judge can declare the accused to be a “criminal accused” under Sections 82, Section 83 of CrPC.
- The declaration of the proclaimed offender means that any citizen of India can arrest the accused at any time and anywhere.
- The proclaimed offender’s passport is automatically confiscated so that the accused does not leave the country.
- If the accused was in government service at the time of the criminal declaration, they will be expelled, and if not, they will not be able to join any government position at any level in their life, even if they are declared a proclaimed offender for only one day.
Offenses on which the court declares the absconding person as a proclaimed offender
If a person commits the following crimes or offences and absconds, they may be declared as the proclaimed offender under Section 82 of CrPc.
- Someone who has committed a home trespass to commit a crime that is punishable by death. Anyone who causes serious injury or death in the event of a break-in or break-out.
- Murder, or Culpable homicide amounting to murder.
- Kidnapping, kidnapping for murder, kidnapping to cause serious harm to a person, slavery, etc.
- Being a member of a group causes serious injury or death by stepping on someone’s property.
- One who causes fire or explosive damage with the intent to destroy individual property or state property.
- Who commits theft with the intent or intent to injure or kill someone, who commits or attempts to commit a robbery, who commits dacoity or dacoity with murder, who commits fraud or theft in an attempt to cause death or serious injury, who attempts to commit robbery or deceit armed with a deadly weapon, and who prepares to commit or gather to Commit Dacoity.
When can the court issue a proclamation against the accused
If a court has reason to believe (whether or not after taking evidence) that a person against whom a warrant has been issued has gone into hiding or has hidden so that the warrant may not be enforced, that court may issue a written proclamation against the accused. The accused must appear in a specific place and at a specific time, and in not less than thirty days after the date of publication of this proclamation.
In Rohit Kumar alias Raju v. State of N.C.T., Delhi and Another (2007), it was observed that the sine qua non for an action under Section 82 of the CrPC is the prior issuance of a warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant cannot be issued. An attachment warrant can be issued only after the issuance of a proclamation.
Procedure to issue the proclamation
Section 82(1) of CrPC, talks about the procedures to issue the proclamation. The procedure is as follows:
- It is read publicly in a recognized place in the city or village in which the person habitually resides.
- It is placed on a visible part of the house or apartment where the person normally lives, or in a visible place in the city or village.
- A copy of this will be placed in a visible part of the court.
- The court may also, if it deems fit, order that a copy of the proclamation be published in a newspaper that is circulated in the place where the person is habitually resident. A written declaration by the court proclaiming that the proclamation was duly published on a particular day in the manner referred to in sub-section (i) of Section 80, shall be deemed conclusive evidence that the requirements of this section have been fulfilled and that the proclamation was published that day.
- If a proclamation published by sub-section 1 relates to a person who has committed an offence under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400 is charged with 402, 436, 499, 459 or 460 of the Indian Penal Code (45 of 1860) and that person does not appear at the time and place specified in the proclamation, the court may after conducting the investigation it deems appropriate, declare the accused of violation and make an appropriate statement.
Punishment for non-appearance
The Criminal Law (Amendment) Act 2005 included Section 174-A in the IPC. It establishes that when a person fails to comply with the terms of proclamation under Section 82 (1) of the Code of Criminal Procedure, he will be punished with imprisonment for a maximum period of three years. In case of non-compliance with the proclamation issued under the crimes provided for under Section 82 (4) of the Code of Criminal Procedure and the person has been announced as a criminal, the penalty will be imprisonment for seven years as well as a fine.
Sanjay Bhandari v. NCT of Delhi
In the case of Sanjay Bhandari V. NCT of Delhi (2018), the Delhi High Court had rejected the prosecution’s argument that any person against whom a proclamation has been issued is considered a proclaimed offender, regardless of the provisions of Section 82 (4). The court held that under Section 82 (1) the CrPC, a proclamation can only be issued against a person against whom a court order has been issued and has run away or is in hiding so that the order cannot be enforced. There is no provision other than Section 82 (4) to declare a person a proclaimed offender and 82 (4) applies only concerning persons charged with the sections of the IPC listed therein. The offence under Section 82 (4) is serious and provides a safeguard for the investigation of such serious offences. However, no such safeguard is provided for a person charged with crimes that may not be so serious, said the High Court in the Sanjay Bhandari case. The court further said, “The intention of the legislature cannot be that such adverse consequences would automatically get attracted to a person qua whom a proclamation has been published and is accused of offences of a less serious nature but for a person who is accused of serious offences enumerated in Section 82(4), they would get attracted only after the safeguard stipulated in Section 82(4) has been followed.”
Arun kumar parihar v. State
The FIR in the case of Arun Kumar Parihar Vs State (Government of NCTD)(2021) was registered under Sections 406 (criminal breach of trust), 420 (cheating), 120B (criminal conspiracy) of the Indian Penal Code, 1860. The Delhi High court has held that a person charged with offences under sections 406, 420, and 120B of the Indian Penal Code (IPC) cannot be declared a ‘proclaimed offender’ under Section 82 (4) of the Code of Criminal Procedure. The Delhi High Court annulled the order issued by the court of the first instance and held that the provisions of the law that the Investigating Agency was intended to invoke are not within the scope of Section 82 (4) of the Cr.PC, 1973, and therefore the applicant cannot be declared a proclaimed offender.
Judge Anu Malhotra referred to various precedents to conclude, mainly Sanjay Bhandari v. State. The single court of Judge Sanjeev Sachdeva in the Sanjay Bhandari case had held that the declaration under Section 82 (4) can only be made concerning the offences specified in that article. The Delhi High Court struck down the order to declare a proclaimed offender as the offences were not within the scope of Section 82 (4).
Delhi High Court issued guidelines for a person absconding as the proclaimed offender
- Delhi High court on 2nd July 2021 issued certain guidelines for the person who is absconding as the proclaimed offender under Section 82 of CrPC. A single bench by Justice JR Midha set the guidelines that courts must follow before declaring a person a criminal and the follow-up action that law enforcement agencies must take. The instructions also contain detailed mechanisms for the early arrest of avowed criminals, including an instruction that the Delhi Police will set up a digital surveillance system that will allow access to specific departments to track down such avowed criminals.
- The Court was prompted to issue the guidelines while dealing with two petitions wherein it was alleged that the petitioners were declared proclaimed offenders without following due procedure. Upon finding that they were not served proper notice, the Court allowed their pleas and quashed the orders declaring them “proclaimed offenders.”
- The court was also of the opinion that declaring a person declared a felon will result in a Section 174A crime of the IPC, punishable by a sentence of up to 3 or 7 years. It affects the life and freedom of a person under Article 21 of the Constitution of India and it is necessary to ensure that the procedures of Sections 82 and 83 of the CrPC are not routinely enacted and that due process is followed. The second important aspect is that, once a person has been declared a criminal, the state must use all reasonable efforts to arrest them and confiscate their property, as well as initiate legal proceedings under Section 174A of the IPC.
The police station where the offender resides has the primary responsibility for arresting. However, any police officer can arrest a proclaimed criminal without a warrant or order from a magistrate. Anyone can arrest a proclaimed criminal and hand him over to the nearest police officer/police station without unnecessary delay. The Police Superintendent periodically reviews the list of Proclaimed Offenders and individuals involved in the cases. If insufficient evidence is recorded or obtainable, the names of the POs are removed after consultation with the District Magistrate and the SP of the district in which such person was proclaimed. Whenever an offending defendant is arrested, a statement is sent to the police station and the district of which he was a resident to have his name removed from the OP list. Likewise, the name of the receipt of intimidation on the death of the proclaimed is eliminated.
When an advertisement distributed in subsegment (1) refers to a man charged with a guilty offense under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 499, 459 or 460 of the Indian Penal Code refuses to appear at the predetermined place and time required by the decree, the Court may, after making the request it deems appropriate, articulate a transmission guilty and make a disclosure to that impact.
To conclude, a proclaimed offender is the person who is not showing up to the court even after the warrant is issued against him. There are certain offences against which if a person does not show up then they are deemed to be called as the proclaimed offender. Thus, every procedure and circumstance about the proclaimed offenders and the situation where they may abscond then what must be done is briefly mentioned in the CrPC.
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