This article has been written by Sarthak Mittal, a student at the Vivekananda Institute of Professional Studies of Indraprastha University, Delhi. This article explains the issuing of a proclamation against a person.
This article has been published by Sneha Mahawar.
The Court in criminal proceedings has two prominent ways to secure the appearance of a person before it, which are namely issuing of summons and issuing of warrants. When a summons is issued, it becomes the duty of the person to appear himself before the court, whereas, in the execution of a warrant, generally a police officer is ordered to arrest the person and produce him before the court. This article is, however, based on stringent provisions of proclamation which are invoked by the court when the person against whom warrants have been issued has in its opinion absconded or has concealed himself to prevent the execution of warrants. The provision relating to the proclamation in the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC” for brevity) is Section 82, which is read with some supplementary provisions providing for attachment of property of a proclaimed offender under Sections 83 to 86 (both inclusive) of CrPC. It is imperative to understand that these provisions can only be invoked as a matter of last resort where the power of issuing warrants has been exhausted by the court. The provisions are not for punishing the accused but have the sole purpose of compelling him to appear before the court.
Section 82 CrPC
Scope of Section 82 CrPC
Section 82 of the CrPC provides for the issuing of a proclamation in a case where the court has reason to believe that the person has concealed himself or has absconded in order to evade the execution of warrants issued against him. The court may form its opinion suo motu from the material on a record or on the presentation of evidence by the prosecution. Through a written proclamation, the court orders the accused to appear at a specific place and at a specific time should be given; it should not be less than 30 days from the date of publishing of the proclamation.
It is pertinent to note that the conditions in the provision are of a mandatory nature. Thereby, a proclamation cannot be issued without first issuing a warrant. Further, the legal implication of this provision is that if the court has no authority to issue a warrant then the court will also be bereft of any authority to issue a proclamation. The same proposition of law has been confirmed in the case of Bishundayal Mahton v. King Emperor (1943). Further, in the case of Devendra Singh Negi v. State of U.P. (1994), the Allahabad High Court held that the proclamation is a notice to the accused whereby he is asked to surrender before the authorities. The provision is to be strictly construed, and a person who is not instantly available can not be termed as an absconder, but there has to be a reasonable ground to form a belief of him being absconded for ascertaining the facts, the court can even examine the serving officer in order to satisfy itself of the fact of absconding, concealment, or of evading of the execution of the warrant. The court further held that the issuing of the proclamation can not be in an arbitrary or whimsical manner but there should be reasons recorded by the court to substantiate the order of proclamation. It is also imperative to understand that proclamation can also become illegal if the time for appearance before relevant authority is fixed before the expiration of 30 days and also the orders of attachment passed on the basis of such proclamation will become illegal, same was held in the case of Jagdev Khan v. Crown (1946).
In the case of Jayendra Vishnu Thakur v. State of Maharashtra, (2009), the Supreme Court observed that the title of proclaimed offender ceases to exist as soon as the person is arrested or otherwise becomes capable of being presented before the court. In the following case, the court held that an order under Section 299 of the CrPC, which allows the recording of evidence in the absence of the accused who has absconded, should have been vacated as soon as the person declared to be the proclaimed offender was in the custody of the police. The court held that as soon as the person was in the custody of police he acquired the right of taking part in proceedings and thereby no evidence could have been recorded against him under Section 299.
Further, in the case of Kailash Chaudhari v. State of U.P. (1993) the Court held that the court should make sure that the case is not disposable under Section 203 of the CrPC before invoking his powers under Section 82 of the CrPC.
In the latest judgment of the Rajasthan High Court in the case of Bhavin Tanwar v. State of Rajasthan (2022), it was held that the courts should first issue summons as per the mandatory requirements of Section 204, as it is an important part of the principles of natural justice, and only after being satisfied with the fulfillment of all essentials in Section 82 should they issue a proclamation. The court observed the exercise of powers by the court under Section 82 in a routine manner and held that the court should be cautious and reluctant and pass orders only in conformity with the provisions of Section 82.
Object of Section 82 CrPC
The object of Section 82 of the Code is not to penalise the absconded person but rather, it is to secure his presence. It is Section 174A of the Indian Penal Code, 1860 whereby a person who fails to appear as per the directions issued under Section 82 of the Code is punished with a term of imprisonment which may extend up to 3 months or fine, or both. Further, an interesting question arose in the case of Manish Dixit v. State of Rajasthan, (2001) that whether the mere fact of a person absconding be enough to draw an inference of guilt against him, the Supreme Court, in this case, observed that such fact of absconding is not sufficient to draw a conclusive inference of guilt, rather it would be seen as cementing evidence and used to fill the gaps in the chain of circumstances.
Manner in which proclamation is made
Subsection (2) of Section 82 deals with the procedure through which a proclamation is issued. The provision provides that the proclamation can be issued by:-
- It is read in some conspicuous place of the town or village where the accused person ordinarily resides.
- It is affixed at some conspicuous part of the house where such a person ordinarily resides. It can also be fixed at some conspicuous part of town or village.
- It shall be affixed at a conspicuous part of the courthouse.
- The proclamation can also be circulated through a daily newspaper circulated in the place where the person ordinarily resides.
Further, the question may arise that how can it be ascertained that the court has taken the above-mentioned necessary steps to publish the proclamation. The following fact becomes important as on the basis of such a proclamation there can be further incidental orders of attachment of property under Section 83 of the CrPC, there can be orders of declaration of a person as a proclaimed offender, and there can also be criminal proceedings against such person under Section 174A of the Indian Penal Code, 1860. Subsection (3) of Section 82 provides that a statement by the court in writing can be taken to be conclusive in this regard.
Who is a proclaimed offender
Proclaimed offender as per Section 82(4) CrPC
In 2005, an amendment was brought to add sub-sections (4) and (5) in Section 82, whereby a person who is accused of serious offences under the Indian Penal Code, 1860, if he fails to appear as per the requirements of the proclamation, the court can declare him a proclaimed offender after inquiring into the matter. The CrPC further provides that the declaration of him being a proclaimed offender will also be published in the same way a proclamation is published.
Section 174A of the Indian Penal Code, 1860, also provides that where a person has been declared a proclaimed offender under Section 82(4) of the CrPC, he shall be liable for a term of imprisonment that may extend to seven years and shall also be liable to fine in tandem with such a punishment. The following criminal liability is far greater than what has been inflicted upon a person who fails to appear as per the direction of the proclamation.
Effects of declaring a person as proclaimed offender
Section 40(1)(b) of the CrPC provides that every officer employed in connection with the affairs of a village, or the residents of the village for that matter, has a duty to communicate to the nearest magistrate or officer in charge of possessing information regarding the place where a proclaimed offender has resorted to. Section 41(1)(ii)(c) of the CrPC provides that a police officer can arrest a person who has been declared a proclaimed offender without any warrant. Under Section 43 of the CrPC, a private person can arrest a proclaimed offender and present him to the nearest police station. Section 73(1) of the CrPC confers power upon the Chief Judicial Magistrate or a Magistrate of First Class to direct a warrant against a proclaimed offender. It is pertinent to note that the term proclaimed offender in Section 82 has been added by the 2005 amendment, however, the term has been used in the following sections even before the 2005 amendment. Thereby, before the amendment, any person against whom a proclamation was issued was called a proclaimed offender. However, through the 2005 amendment, an embargo has been imposed whereby a person cannot be declared a proclaimed offender without an inquiry.
Anticipatory bail when declared as a proclaimed person
In the case of Lavesh v. State (NCT of Delhi) (2012), Supreme Court held that, usually, on a declaration being made against the accused under Section 82 of CrPC he is not entitled to the relief of anticipatory bail. However, In the case of Sidharth Kapoor v. State of UP and Anr (2022), the Allahabad High Court held that seeking processes under Section 82 of the CrPC during the proceedings of anticipatory bail is circumventing the procedure by the investigating agency, and the issuing of processes under Section 82 engrafts no embargo upon the accused to exercise his statutory right of seeking anticipatory bail.
Both judgments seem to be in conflict. As per the law, the law laid down by the Supreme Court is to be followed; however, by a purposive construction of the provision, we can say that an application under Section 438 can be filed by the accused even after being declared as a proclaimed person or proclaimed offender, as there is no bar expressed against a proclaimed offender for the filing of anticipatory bail under Section 438. On the other hand, it is pertinent to note that as per the Supreme Court’s ruling courts will be reluctant in granting anticipatory bail considering the chances of such a person absconding or concealing.
Difference between proclaimed offender and proclamation
It is pertinent to note that there is a difference between a proclamation and a proclaimed offender, this difference did not exist before the 2005 amendment. A proclamation is a notice to the accused, who is believed by the court to have absconded or concealed himself to evade execution of warrants whereas, proclaimed offender is a title that is conferred upon a person against whom a proclamation has been published and also who have committed a serious offence. The title of a proclaimed offender is declared after an inquiry is conducted by the court, in which the court has to confirm that such a person has been intentionally in hiding to evade the execution of warrants. The title of proclaimed offender opens up the person to penal liabilities and also to other disqualifications; these consequences also make it essential for the court to conduct an inquiry before declaring such a title. However, it is pertinent to note that there has been no reference made in the provision which expounds upon the extent of such inquiry.
Difference between proclaimed persons and proclaimed offenders
In the case of Deeksha Puri v. State of Haryana, (2012), it has been held by the court that there is only one difference between proclaimed offenders under Section 82(4) and Section 82(1) is of the criminal liability being inflicted upon them whereby all other provisions like Sections 40, 41, 43, and 73 of the CrPC will equally apply on both sets of persons but the liability of imprisonment up to 7 years and a fine can only be imposed if the person has been accused of any of the offences mentioned in Section 82(4) and a proclamation has been issued against him.
Further, in the case of Satinder Singh v. State of U.T., (2010) the Punjab and Haryana Court held that for declaring a person a proclaimed offender, it is essential that he be accused of any of the offences listed in Section 82(4) of the CrPC. However, the court has been silent upon the matter relating to clarity of the term proclaimed offender used in Sections 40, 41, 43, and 73 of the CrPC. The same proposition of the law has been followed by courts in the cases of Satinder Singh v. State of U.T., (2011) and Likhma Ram v. State of Punjab and Anr., (2011). The courts in the following case filled that those persons who have not committed any of the offences provided under the list of offences in Section 82(4) can be termed as ‘proclaimed persons’ and not ‘proclaimed offenders.’
The Single Bench of the Delhi High Court in the case of Sanjay Bhandari v. State (NCT of Delhi), (2018) has clarified the law on two issues which are whether ‘proclaimed offenders’ and ‘proclaimed persons’ be treated as the same set, and when provisions like Sections 40, 41, 43, and 73 are to be invoked. The court held that proclaimed persons can not be treated the same as proclaimed offenders as later can only be the persons who the court has declared under Section 82(4) after they have failed to adhere to the notice of proclamation issued under Section 82(1). The declaration only can be made if the person has been accused of any of the offences mentioned in Section 82(4). The court went ahead and clarified that if a declaration has been made under Section 82(4) where a person has been accused of an offence other than mentioned in the provision which may be an offence under a special law or under the Indian Penal Code itself it will be seen as an illegal declaration and will be bad in law. Further, the court held that there is no provision in CrPC other than Section 82(4) which specifically and expressly talks about the declaration of a proclaimed offender thereby, the section is to be followed strictly for such declarations and other persons can be called ‘proclaimed persons’ at best. Pertaining to the second issue the court held that only after the declaration under Section 82(4) the provisions like Sections 40, 41, 43, and 73 can be invoked.
Before the 2005 amendment, the terms proclaimed offender and proclaimed person were used interchangeably. However, through the 2005 amendment, there was a specific provision incorporated for the declaration of proclaimed offenders, which resulted in the dichotomy of opinions between the courts. One where the court construes that there is no major difference except criminal liability, and the other where the court not only draws a difference between the proclaimed offender and proclaimed persons but also construes that other legal ramifications like the power of police to arrest, the power of issuing a warrant, and criminal liability will also be affected by the said distinction, whereby all provisions that were earlier applicable only on a proclamation being issued against the person under Section 82(1) can now be invoked only on a declaration being made as per Section 82(4).
This being said, it is pertinent to note that the legislative intent has been made manifest by Delhi High Court in its recent Sanjay Bhandari case. However, the dichotomy in opinion still has to be resolved, either by legislation or by the Supreme Court. The declaration of a person as a proclaimed offender makes him part of a class of citizens who can be treated differently for the safety of society, and various legal repercussions take place from such a declaration; thereby, there should be cogent laws/rules/guidelines on the given matter.
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