Provisions related to proclaimed offenders under the Criminal procedure code

When the warrant cannot be executed, the court has two options. First is the proclamation of the person who is absconding or concealing himself and Second one is the attachment of the absconded person's property.

 

Proclamation means a written order is issued by the court, which sets out the requirement to attend the court at a specified date and place.

 

Attachment

Attachment is defined as taking possession of the property of the person against whom a proclamation has been issued.

 

Section 82

 

When the court issued the proclamation against the accused

Section 82 provides that when, in the opinion of the court, a person against whom an arrest warrant has been issued tries to abscond or conceal/hide himself in such a way that the arrest warrant cannot be executed. The court can issue a written proclamation against the accused, requiring the accused to appear before the court at a specified place and time not less than 30 days after the date of publication of the proclamation.

 

Where such a proclamation has to be published

According to section 82(2) of the code, the proclamation has to be published which is followed by:-

 

• It shall be publicly read in a recognized place in the village or town where the proclaimed offender ordinarily resides.
• It must be displayed in a prominent location in the house where such person resides, or in another prominent location in such town or village.
• A copy of the proclamation will be displayed in a court where such a proclamation order is passed.
• The court may also direct that a copy of such a proclamation be published in a newspaper which is circulated in the place where such a person has his residence.

 

Offence for which court declared the absconding individual a proclaimed offender.

If an individual commits the following offences, the court can declare such a person a proclaimed offender under section 82c of the code.

 

• If a person commits an offence of murder or culpable homicide not amounting to murder, which is punishable under Sections 302, 304 of the IPC,
• If a person commits an offence of kidnapping or abduction for murder (Section 364 IPC) or kidnapping to cause grievous hurt, slavery (Sec 367 IPC),
• If a person commits the offences of theft with the intent to injure or kill, or robbery (Section 390),
• If a person attempts to commit robbery (Section 393), commits dacoity (395), commits the dacoity with murder (Section 396), or commits robbery or dacoity with an attempt to cause death or grievous hurt (Section 397), or attempts to commit robbery or dacoity with a deadly weapon ( section398), and is preparing to commit dacoity (Section 399),
• If a person commits the offence of mischief by fire with the intention of destroying the house (section436), or trespasses on a house with the intent to commit any offence which is punishable with the death penalty, And
• If a person commits the offence of causing grievous hurt while doing a lurking house trespass or house breaking (Section 459),

 

Attachment of the absconded person (Section 83)

 

The court that has issued the proclamation under section 82 at any time after issuing such a proclamation can pass an order of attachment of the property which belongs to the proclaimed person after issuing the proclamation.

 

When the attachment order has been made by the court

When the proclaimed offender is trying to dispose of the whole or any part of his property, or is trying to remove the whole property or any part of his property, the court can declare the property to be attached along with the issue of the proclamation.

 

In the event of the realization of debt or movable property,

In the case of movable property, attachment of property can be done by the court using the following method.

 

• 1. Byseizure: The court can seize the property that belongs to the absconding person. or,
• 2. Appointreceiver: Thecourtcan appoint a receiver to sell the property. or,
• 3. Prohibition of delivery of property The court can prohibit delivering the property to the proclaimed person or to anyone else on his behalf.

 

The court can attach the proclaimed offender's property either by following all methods or any two as the court thinks fit while attaching the property.

 

In the case of movable property

 

In the case of movable property, attachment of property can be done by the court using the following method:

 

• By taking possession of the property courtcan attach the property by taking possession of the property that belongs to the proclaimed offender.
• By appointment of a receiver the court can attach the property by appointing a receiver.
  Under this section, the receiver has the same power and duties as specified in the code of civil procedure.
• By prohibiting the payment of rent. The courtcan attach the property by prohibiting the payment of rent on the delivery of property to the proclaimed person or to anyone else on this behalf.

 

The court can attach the proclaimed offender's property either by following all methods or any two as the court thinks fit while attaching the property.

 

Where the property which is about to be attached consists of live stock or is perishable in nature, the court can pass an order for the immediate sale of the property.

 

The Delhi High Court issued the guidelines regarding proclaimed offenders.

 

Sanjay Tyagi vs. the State (National Capital Territory of Delhi) 2021

In this case, Delhi High Court presided by Justice A.R. Midha, has laid down the elaborated guidelines which have to be followed by the court while declaring someone as a proclaimed offender so that the process under sections 82 and 83 is not issued in a routine manner.

 

• 1. The police have to submit a report before the court that the person against whom a warrant has been issued is absconding or concealing/hiding himself.
• 2. Concealment of a proclaimed offender has to be deliberate for the purpose of evading arrest.
• 3. A mere non-availability of the address of the person is not sufficient to declare such person a proclaimed offender unless such concealment is made with the deliberate intention to evade arrest. It cannot be said that a person who had gone outside the country before the issuance of the arrest warrant is trying to abscond or conceal himself. However, if a person leaves India before the issuance of a proclamation against him and continues to reside outside the country in order to defeat or delay the execution of an arrest warrant, he will be taken in for absconding.
• 4. The police have to submit an affidavit or status report which contains the phone number or address of the accused against whom an arrest warrant has been issued by the court. This affidavit should state the inability to secure the presence of the accused before the court.
• 5. Before issuing the proclamation, the court has to record his satisfaction that the person has absconded.
• 6. Before issuing the proclamation, the court is under an obligation to examine the police officer regarding the measures taken by the court to execute the warrant.
• 7. The police officer must submit the affidavit to the court prior to the publication of the proclamation. This affidavit shall be in relation to photographs of the affixation of the proclamation to some conspicuous place of residence of the absconded person.
• 8. Once the proclamation is published in a newspaper under section 82 of CrPc, a copy of the newspaper has to be sent by the newspaper agency by post to the address of the accused.
• 9. The proclamation must be published in all of the ways specified in Section 82(2) of the Act.

 

Case law

 

1. Rohit Kumar vs. State of NCT Delhi, 2007

In this case, the Court held that the earlier issuing of a warrant of arrest by the Court is a sine qua non for an action under Section 82 of the Criminal Code Procedure. The officer should present a report to the magistrate stating that the individual against whom the warrant was obtained has managed to get away or is shielding himself, preventing the warrant from being issued. Only when a proclamation has been issued may an attachment warrant be issued.

 

2. State of M.P v Pradeep Sharma (2014) SCC 171

In this case, the Supreme Court held that anyone who is an absconder or proclaimed offender under section 82 of the criminal procedure code is not eligible for anticipatory bail relief and the court also stated that The court also stated that "the power conferred by Section 438 of the Criminal Procedure Code is unusual in nature, and it should be used only in rare situations where it would seem that the individual accused of a crime may be wrongfully arrested or where there is probable cause to believe that a person accused of a crime will not otherwise abuse his freedom and rights."

 

3. Lavesh v State (NCT Delhi) (2012) 8 SCC 730

In this case, the Supreme Court held that "normally, in the case of an absconding person who has been declared a proclaimed offender, the question of granting anticipatory bail does not arise." The Supreme Court further reiterates that "when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid the execution of a warrant and is declared as a proclaimed offender in terms of section 82 of the code, he is not entitled to the relief."

 

4. Prem Shankar Prasad v State of Bihar 2021 SCC OnLine SC955

In this case, the SC said that "an accused who has been declared an absconder or proclaimed offender under section 82 is not entitled to anticipatory bail and the Supreme Court said that the high court of Patna ignored the fact of the initiation of sections 82 and 83 of the CrPc."

 

5. Mamta Giri v/s State of UT, Chandigarh 2022 16 LiveLaw (PH)

In this case, the court held that where the offence is punishable by less than seven years, is a bailable, non-heinous offence and the accused is a first-time offender, has established a fair ground for not being present in court, to the satisfaction of the judge, then the mere fact that the accused has been proclaimed offender will not bar him/her from availing the benefit of anticipatory bail under section 438 of the CrPc

 

Conclusion

Therefore, we conclude that the proclaimed offender is a person against whom a written proclamation has been issued under section 82 of the code when he is trying to evading the arrest. Court can also seize the property which belongs to proclaimed offender under section 83 of the CrPc.

 

Written by Advocate Shariya