Thursday, July 1, 2021

Proclaimed offender - 82 CrPC

 Statute

  1. Section 82 CrPC
    1. 82(2)(i) - 
      1. 82(2)(i)(a) - Ordinarily resides
        1. liberally interpreted to mean not just the official address of accused but also where the accused ordinarily resides i.e any place where he would unofficially spend most of his time.
    2. 82(3) - proclamation issued by court
    3. 82(4) - specified offense, 30 days after publication, declaration to that effect.
  2. Section 83 CrPC
    1. Court empowered to attach of the movable / immovable properties of the Proclaimed person at any time AFTER the issuance of the proclamation u/s 82 CrPC.
    2. Old Code - where the attachment order could be issued at any time, even simultaneously with order of proclamation
    3. New code 2005 - attachment ONLY after order of proclamation has been filed justifiable reason.
      1. Exception
        1. Property is about to be disposed off
        2. Property is about to be removed from the local jurisdiction of court.
  3. Section 84 CrPC
    1. Claims and Objections regarding attachments.
    2. Person who has interest in property to be attached, he may object attachment within 6m
  4. Section 85 CrPC 
    1. release of attached property on appearance of the proclaimed person within the specified time
  5. Section 86 CrPC
    1. lay down rule regarding appeal from order rejecting application for restoration or attached property.
  6. Section 482 CrPC
    1. Empowers Court to make such orders as may be necessary to secure the ends of justice in exercise of the inherent powers
  7. Section 483 CrPC
    1. Every HC to exercise its continuous superintendence over the Trail courts to ensure that there is expeditious and proper disposal of cases
  8. Article 227 of Constitution of India
    1. Confers power to Supreme Court the power of superintendence over all subordinate courts in relation to which it exercises jurisdiction.
    2. Wide power is to keep the path of justice clear of obstruction which might impede it.
  9. Chapter VI CrPC : Process to compel appearance 
    1. Part A : Section 60 - 69 : Summons
    2. Part B : Section 70 - 81 : Warrant of Arrest
    3. Part C : Section 82 - 86 : Proclamation  & Attachment
    4. Part D : Section 87 - 90 : Other rules regarding processes
  10. IPC 174A 
    1. Growing Number of Proclaimed offenders , 174A was inserted of Clause 44 of CrPC Amendment 2005 vide Notification No. SO 923(E) dated 21st June 2006
    2. Hoping it would be deterrent for persons fleeing from justice.
    3. Punishable with 3-7y of imprisonment.
      1. 82(1) - 3y/fine/both
      2. 82(4) CrPC u/s 302, 304, 364, 382, 392, 393, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459, 460 IPC - 7y + fine
  11. IPC 216 IPC
    1. Harbouring and preventing the arrest of proclaimed offender is punishable offence upto 3y
  12. IPC 229A - introduced in 23rd June 2006
    1. Failure by person released on bail or bond has been made penal offence.


Absconder

  • Not defined in CrPC
  • Occurs in provision - Section 87, 90(a) CrPC and Section 172 IPC
  • Object of these provisions as absconder may be said to be one who intentionally makes himself inaccessible to the processes of law.
  • if person comes to know about issuance of process against him / anticpates such process and hides or quits the country. He is said to have absconded.
  • Who is NOT absconder
    • When a person has gone to distant place BEFORE the issuance of a warrant.

Processes for Appearances of accused / Suspect

  1. Compulsive
  2. non-compulsive


Important Points

  1. Statistics 
    1. Delhi
      1. 18541 Persons declared Proclaimed persons 
      2. 6000 are Proclaimed offenders of heinous crimes
  2. Issuance of NBW
    1. Interferes with personal liberty and courts should be extremely careful before issuing NBW.
    2. Warrants either bailable or non-bailable SHOULD never be issue without proper scrutiny of facts and complete application of mind.
      1. It has to be ensured that the concerned person was made aware about legal process pending against him
    3. NBW  should be issued to bring a person to court when summons or bailable warrants would be unlikely to have desired result. 
      1. it is reasonable to believe that person will NOT VOLUNTARILY APPEAR in court.
      2. the police authorities are unable to find the person to serve him with a summon; 
      3. it is considered that the person could harm someone if not placed into custody immediately.
    4. Guidelines where NBW are issued by Courts
      1. All HC shall ensure that the subordinate courts use printed and machine numbered FORM 2 for issuing warrant of arrest and each such form is duly accounted for.
      2. Before authenticating, the court must ensure that the complete particulars of the case are mentioned on the warrant;
      3. the presiding Judge of the Court ( Or responsible officer specially authorised for the purpose in case of HC ) issuing the warrant should put his full and legible signature on the process, also ensuring that court seal baring complete particulars of the court is prominently endorsed theron.
      4. The Court must ensure that warrant is directed to a particular police officer and unless intended to be open-ended it must be returnable whether executed or unexecuted on or before the date specified therin;
      5. Every court must maintain a register (in the format given below at p 804) in which each warrant of arrest issued must be entered chronologically and serial number of such entry reflected on the top right hand of the process.
      6. No warrant of arrest shall be issued without being entered in the register mentioned above and the court concerned shall periodically check / monitor the same to confirm that every such process is always returned to the court with due report and placed on record of the case concerned.
      7. A register shall be maintained at Police station concerned. the SHO of police station concerned sSHALL ensure that each warrant of arrest issued by the court, when received is duly entered in the said register and is formally entrusted to a responsible officer for execution
      8. Ordinarily, the courts SHOULD NOT give a LONG time for return or execution of warrants as experience has shown that WARRANTS are prone to MISUSE  if they remain in control of executing agencies for long.
      9. On the date fixed for return of the warrant, the court must insist upon a compliance report on the action taken theron by SHO 
      10. The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as facilitating fixing of responsibility in case of misuse
      11. In event of warrant for execution beyond jurisdiction of the court issuing it, procedure laid down in Section 78 & 79 of code must be strictly and scrupulously followed.
      12. In event of cancellation of arrest warrant by the court, the order cancelling warrant shall be recorded in the case file and register maintained. A copy thereof shall be sent to the authority concerned, requiring the process to be returned unexecuted forthwith.
  3. Measures to Enhance the Efficiency and accuracy in Execution of warrants / Proclamations
    1. IO/SHO SHALL personally or through one of SI visit address to check correctness before or while seeking a warrant of arrest
    2. SHO Shall record name of atleast 2 respectable persons of the locality of accused with contact details  who ratifies the address of accused. 
      1. Photograph shall be sufficient and the witness will not be required to the police station 
      2. Photocopies any identity proof and photograph of such witness 
    3. SHO should ascertain mobile , landline , identity card issued 
    4. Take the photo of dwelling unit of accused
    5. IO shall ascertain the Job profile of accused and shall obtain his complete address of is workplace 
    6. Data of the proclaimed offender in cases Delhi Police is available on ZIPNET and should be made accessible to public
    7. Foreign jurisdiction, the trail court must issue a warrant and subsequently a proclamation ONLY upon being satisfied that summons has not be able to be served in spite of following the procedure prescribed under the relevant statue
    8. A central data base of proclaimed offenders be prepared similar to crime and criminal tracking n/w & system ( CCTNS ) 
    9. if accused is suspected to be abroad, a RED Corder notice may be issued from INTERPOL against him if 
  4. Proclaimed Offender - EFFECT
    1.  leads to a serious offence under Section 174A IPC
      1. Punishment for period of 3-7y
      2. Proclamation AFFECTS the life & liberty of a person u/s A21 and it is necessary to ensure process u/s 82 & 83 CrPC is NOT issued in routine manner and Due process is followed.
    2. Section 216 IPC
      1. Person KNOWINGLY harbours a proclaimed offender to prevent his apprehension is liable to be punished u/s Section 216 IPC with imprisonment up to 7y in certain cases.
      2. Enquires should be made from relatives, friends & other person who are likely to be aware of movement and should we warned against harbouring him.
    3. Primary responsibility for securing the arrest of a proclaimed offender is local police under whose jurisdiction the accused is a resident.
      1. A Proclaimed offender can be arrested by ANY police officer WITHOUT any order from magistrate and without warrant
      2. Any private person can also arrest a proclaimed offender and him over
    4. Anticipatory Bail - 438 CrPC
      1. AB should not  be given to accused who has been declared as absconder and not cooperated with investigation. 
      2. Proclaimed offender  u/s 82 CrPC NOT entitled to relief of AB
    5. Bail 
      1. 437/438/ 439 CrPC - 
      2. Conditions to grant bail SHOULD be NOT arbitrary/ capricious - they should be JUST & REASONABLE.
    6. 82 CrPC -
      1. if court is satisfied that circumstances exist, 
      2. Court will give a time of 30 days from date of proclamation within which person has to appear before court. 
      3. The issuance of warrant is prerequisite for an order of proclamation.
    7. Ministry of External affairs SHALL 
      1. NOT issue passport facilites to absconding accused.
      2. Passport of such accused should be revoked u/s Section 6 and 10 of Passport Act 1967.
  5. Removal as Proclaimed offender
    1. Arrest of accused
    2. Death of the proclaimed offender or expiry of 30years from date of proclamation
    3. Any other good & sufficinet reason e.g trifiling nature of the case or lack of sufficient evidence for a successful proseuction or withdrawal of the case etc.
  6. Once a person is declared Proclaimed offender
    1. Duty of State to make all reasonable efforts to arrest him and attach his properties 
    2. As well launch prosecution u/s 174A IPC.
    3. 82(3) of CrPC once a proclamation is issued in accordance with 82(2)(i CrPC  
      1. a Statement by the Court issuing proclamation to effect that the proclamation was duly published SHALL be treated as conclusive evidence that the proclamation on such date.
  7. Argument against Proclamation
    1. Principle
      1. Liberty is inalienable right of every human being
      2. A21 of Constitution - No one shall be deprived of his liberty except in accordance with procedure prescribed by law.
      3. NBW interfere with personal liberty , courts have to be extremely careful before NBW
      4. Salutary Duty of court to prevent the abuse of the process, miscarriage of justice and correct the irregularities in judicial process.
      5. As far as possible summon/ BW should be preferred 
      6. Every person who is NOT immediately available cannot be characterized as an absconder.
      7. the court  has to record its satisfaction that the accused has absconded or is concealing in order to avoid the execution of the warrant.
    2. Practise
      1. Voluntarily appear in court
      2. Not a person to harm any one.
      3. proper scrutiny of facts & Complete application of mind
      4. Careful examination if FIR was filed with Oblique motive.
      5. No proclamation shall be issued on the ground of unavailability.
      6. The procedure under 82, 83 CrPC not followed
      7. Proclamation without sufficient cause would be illegal - order like attachment would be illegal as well.
      8. No lookout notice, No Red Corner Notice
      9. No affidavit by the police that they visited the place of ordinary residence 
      10. before proclamation issue notice to RWA ( Resident welfare association ) 
      11. It has to ESTABLISH there is no immediate prospect of arresting the accused.
      12. Proclamation u/s 82 CrPC must mention time within which and place at which the absconder should present himself to save the sale of property. 
        1. A omission to mention the time & place would render the proclamation a NULLITY.
        2. Ineffective if period is less than that is provided in section i.e 30days
      13. as proclamation is published by police and a satisfaction is accorde to it by the court. 
        1. Only SI or higher rank has to give not Head constable cannot inspire requiste confidence 
      14. Provisions of 82 CrPC are mandatory and should be construed strictly

  8. Argument in favor of Proclamation
    1. Liberty is precious for an individual so is the interest of the society in maintaining law and order
    2. Sometime in larger interest of public and the State it becomes absolutely imperative to curtail freedom of an individual for a certain period, only then NBW should be issued.
    3. No AB for a person who is proclaimed and not cooperating with investigation.
    4. sufficient evidence justifying arrest of an accused is collected but accused is evading arrest.
  9. Problems with Proclaimed Offenders
    1. People made proclaimed offenders without proper service of summons
    2. Large number of people who have been declared proclaimed offenders ensure that their trails are indefinitely delayed.
  10. Part C of Chapter VI - Proclamation and attachment 
    1. Coercive measure to apprehend person in respect of whom a warrant of arrest has been issued u/s Section 73 of CrPC
  11. Proclamation Needs to be duly published in some conspicuous part
    1. the town / village where such person ordinarily resides
    2. House or homestead in which such person ordinarily resides or to some conspicuous part of such town / village
    3. Court - house
    4. If Courts seems fit, a copy of proclamation shall be published in daily newspaper circulating in the place in which such person ordinarily resides.
      1. Copy of newspaper be sent by post to the address of accused as being done in Civil matters Order 5 Rule 10 of CPC
    5. Prize money may be declared for inforamation/ apprehension of accused.
  12. Necessary condition for Proclamation
    1. Court has to satisfied on basis of material that a person despite having knowledge of proceeding is avoiding the process issued.



Guidelines 



Case Law

  1. Nachi Exports Vs Thiruvengadam & Sons 2008 CrLJ (NOC) 278
    1. Court considered factors such as
      1. The accused was well aware of the NBW of arrest, issued against him
      2. also regarding the efforts taken by the officer concerned for its execution
      3. Obviously the accused was evading arrest by adopting foul play or tactful means
  2. Inder Mohan Goswami Vs State of Uttaranchal (2007) 12 SCC 1
    1. NBW interfere with the personal liberty and courts should be extremely careful before issuing NBW
    2. BW, NBW SHOULD NEVER be issued without proper scrutiny of facts and complete application of mind.
    3. What has to be ensured is that the concerned person was made aware of legal process pending against him.
    4. Para 50 - Civilized countries have recognized that liberty is the most precious of all human rights. The American Declaration of Independence, 1776 French Declaration of Rights of Men and the Citizen, 1789, Universal Declaration of Human Rights and International Covenant of Civil and Political rights 1966 all speak with onc voice - liberty is the natural and inalienable right of every human being. similarly A21 of our constitution proclaims that no one shall be deprived of his liberty except in accordance with procedure prescribed by law
    5. Para 51 - The issuance of NBW involve warrants involves interference with personal liberty. Arrest and imprisonment means deprivation of most precious right of an individual. Therefore the courts have to be extremely careful before issuing NBW.
  3. Raghuvansh Dewanchand Bhasin Vs State of Maharastra ( 2012 ) 9 SCC 791
    1. Guidelines to be adopted in all cases where NBW are issued by courts.
  4. Lavesh Vs State (NCT of Delhi _ 2012 8 SCC 730
    1. SC - AB not given to accused who is declared as absconder and not cooperated with investigation.
  5. Moti ram Vs State of M.P (1978) 4 SCC 47
    1. Sureties demanded and what sum should be insisted on are dependent on variable and court should be liberal in releasing them on their own recognizance by imposing reasonable conditions and deprecated the practice of demanding heavy sums by way of bail.
  6. Sumit Mehta Vs State ( NCT of Delhi ) (2013) 15 SCC 570
    1. While granting bail to an accused, the conditions imposed, if any should not be stringent and be just and reasonable.
    2. Stringent conditions if imposed and not capable of compliance, may amount to denial of bail shall further amount of denail and deprivation of personal liberty, violating the constitional right of accused guanratneed under A21 




Source 

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