Vishal Garg Narwana, Advocate
Punjab & Haryana High Court, Chandigarh
Email Id : firstname.lastname@example.org
Date : 28/09/2022
Location : Kothi No. 2024, Sector 21-C, Chandigarh
Proclaimed OffenderWhen the criminal law is set into motion against the accused, then the accused has to appear before the investigating officer or before the Illaqa magistrate. Court itself or on the request of the investigating officer may issue warrant of arrest, when the accused do not appear before a police officer during investigation or when he does not appear before the Illaqa magistrate or trial court. The proclaimed offender is a person eluding the authorities and the law. 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 present him before the court. Under section 82 Cr.P.C., if the court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. The publication of proclamation shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides, the same shall be affixed at some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village, the copy of the publication of proclamation shall be affixed to some conspicuous part of the Court-house or if the Court thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. A statement of the official will be recorded in writing by the Court issuing the proclamation, to the effect that the proclamation was duly published on a specified day, in the manner specified. The statement shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day. Where a proclamation published is in respect of accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a 'proclaimed offender' and make a declaration to that effect. Proclaimed Offender would be any offender who has suffered declaration after proclamation under Section 82(1) or Section 82(4) Cr.P.C. according to Section 82(2), (3) and Section 82(5) Cr.P.C. The persons accused of having committed offences mentioned under Section 82(4) Cr.P.C. can only be declared a proclaimed offender. Any person who has been declared a proclaimed person under Section 82(1) Cr.P.C. or under Section 82(4) Cr.P.C. will be at par for the purpose of all the liabilities and consequences attached to a person declared proclaimed offender. Order of declaring an accused a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82(4) Cr.P.C. When proclamation is issued under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. When a person is declared a 'Proclaimed Offender' u/s 82(4) CrPC he is liable for greater punishment up to 7 years whereas if he is declared 'absconder' or 'proclaimed person' u/s 82(1) CrPC he is liable for lesser punishment up to for 3 years. Section 174A of Indian Penal Code prescribes punishment for non-appearance in response to a proclamation under section 82 of Cr.P.C. If anyone is declared as a proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail. The declaration of the proclaimed offender means that any citizen of India can arrest the accused at anytime and anywhere. State of M.P. v. Pradeep Sharma, 2014 (2) SCC 171 & Lavesh v. State (NCT of Delhi), 2012 (8) SCC 730. The sine qua non for an action under Section 82 of the Cr.P.C. 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 under section 83 Cr.P.C. can be issued only after the issuance of a proclamation. Rohit Kumar alias Raju v. State of N.C.T., Delhi and Another, 2008(1) RCR (Criminal) 101. Proclamation not publicly read in village where accused resided as per section 82 Cr.P.C. Non-compliance cannot be cured and renders proclamation proceedings subsequent thereto a nullity. Harvinder Singh v. State of Haryana and another, 2021 (1) RCR (Criminal) 493. Section 82 Cr.P.C. shows that before a proclamation can be issued, the court should have reasons to believe that a person against whom a warrant was issued has absconded or is concealing himself and that the warrant cannot be executed. It may be subjective satisfaction but it cannot be totally without any material. Only after recording such satisfaction, the Court can direct eh publication of a written proclamation requiring such person to appear at a specified place within the period, not less than 30 days from the date of said publication. Where no effort is made by the trial court to serve the petitioner at the address given in the FIR either after challan was filed or during investigations, then issuing proclamation under Section 82 Cr.P.C. declaring him to be a proclaimed offender are not sustainable. It was also categorically held that the date of appearance of accused shall not be less than 30 days from the date of publication. Therefore, when no effort is made to serve the summons on the accused, he cannot be declared as Proclaimed Offender. Sunil Kumar v. State, 2002 (1) RCR (Criminal) 119. A person charged with offences under sections 406, 420, and 120B of the Indian Penal Code cannot be declared a `proclaimed offender' under Section 82(4) of the Code of Criminal Procedure. These provisions of IPC that the Investigating Agency was intended to invoke are not within the scope of Section 82(4) of the Cr.P.C. Arun Kumar Parihar v. State (Government of NCTD), 2021 (2) RCR (Criminal) 556. Since the execution of a non-bailable warrant directly involves curtailment of liberty of a person, warrant of arrest cannot be issued mechanically, but only after recording satisfaction that in the facts and circumstances of the case, it is warranted. The Courts have to be extra-cautious and careful while directing issue of non-bailable warrant, else a wrongful detention would amount to denial of constitutional mandate envisaged in Article 21 of the Constitution of India. Whereby non-bailable warrant of arrest were issued against the accused, the court has to be prima facie satisfied that the person accused of committing a non-bailable offence is also evading his arrest. There has to be material before the court to reach at the aforesaid conclusion. Without recording such subjective satisfaction to the effect that the accused is also evading his arrest, which should be on the basis of the material placed before the court, warrants of arrest cannot be issued and such satisfaction can be derived from the police paper/case diary. Further, mere absence of the accused cannot give rise to a presumption that he is evading arrest which in turn cannot be the sole ground to issue warrant of arrest. Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791. Declaring a person declared a felon will result in a Section 174A 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. Sunil Tyagi v. Govt of NCT of Delhi & Anr., (2012) 8 SCC 730. Normally arresting the accused is the duty of the police officer in the station near the place the criminal resides. But, a proclaimed offender can be arrested by any police officer in any jurisdiction without a warrant or an official confirmation from the Magistrate. Rather, a proclaimed offender can be apprehended by anybody and handed over to the local police station officer or a police station without hesitation. When an accused is apprehended, a statement is given to the police officer to take his name off the list. To summarise, a proclaimed offender is somebody who fails to appear in court even after warrants have been issued against him. As a result, the Criminal Procedure Code concisely mentions every procedure and scenario relating to proclaimed offenders and what must be done if they flee.
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