Who is Proclaimed Offender? Procedure, its effects & consequences, discussed. How to get the PO order quashed? Absconder in Section 82 CrPC- Judgments, Settled Law by Supreme Court of India and Various High Courts.
Section 82 CrPC. Deals with the proclamation of person absconding.
Where does this provision applies?
The provisions contained in section 82 CrPC were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. The object is to compel the appearance of the person against whom proclamation has been issued by the penalty of attachment and sale of his property, Only the Court issuing a valid proclamation (and no other Court) may, for the reasons to be recorded in writing, at any time after the issue of proclamation attach his property. The Hon’ble Supreme Court of India in “Vimalben Ajitbhai Patel Vs Vatsaben Ashokbhai Patel, 2008 (4) SCC 649” observed: The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon.
Section 82 CrPC has mainly three parts.
- As per the first part of the section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under Section 82 CrPC. The Court must be satisfied that it has reason to believ that the accused has been absconding or concealing himself so that suc warrant cannot be executed.
- Second part suggests as to how proclamation has to be given effect to or published to make the accused acquaint that his appearance is required in connection with particular case before particular court.
- The this part as indicated under sub-section (4) of Section 82 CrPC gives more discretion to make inquiry against an accused who has committed offence indicated under sub-section (4).
Meaning of The Terms “Abscond”
The word abscond is not defined in the CrPC. The primary meaning of the word abscond is to hide and when a person is hiding from his place of residence, he is said to abscond. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself.
To be an “absconder” in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law; even if hiding place be his own home.
Also Read: Judgments on Maintainability of Anticipatory Bail if accused declared Proclaimed Offender PO or Proclaimed Person
In State of Tripura v. Ashok Debbarma, 2013 Cr. LJ(NOC) 67 (Gau) it was observed that “To ‘abscond’ means to go in a clandestine manner out of the jurisdiction of the court, or to conceal in order to avoid process of the court, to hide, to conceal, or absent oneself clandestinely with intent to avoid legal process. Abscondance may lend weight to the other evidence and help the prosecution in establishing the guilt of the accused; but by itself abscondance is hardly any evidence of guilt.
In Devendra Singh Negi Vs State of UP. It was observed by the Hon’ble Court that the words “has absconded or is concealing himself so that such warrant cannot be executed” in Section 82 of the Code are significant. Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 are mandatory and are to be construed strictly. Section 82 CrPC required that the court must, in the first instance, issue a warrant and it must put down its reasons for believing that the accused is absconding or concealing himself. This, in evey case where the warrant is not executed, resort cannot be had to Section 82 and it may be necessary to examine the officer concerned who had gone to execute the warrant and to the measured adopted by him to serve the same.
In Mehar Singh VS State of Punjab, 2010 Cr LJ 409 (P&H). it was observed by the Hon’ble High Court that In case FIR was lodged against the petitioner accused for commission of offences under sections 420/407/468/471 and 201 IPC and when constable making inquiry has reported that petitioner had gone to Canada and there was material on record to shoe that petitioners had left for Canada after lodging of FIR then since petitioner were residing in Canada prior to registration of FIR it was held that since then petitioners were residing in Canada prior to registration of FIR, there was no occasion for them to conceal themselves or abscond order. Declaring petitioners as proclaimed offenders was violative of Section 82 CrPC.
In Vinor Kumar Khanna Vs State of Delhi, it was held that if the petitioner, citizen of India being aware of the warrants of arrest issued against him is evading arrest by not coming to India at the earliest to face the criinal case, he is to be treated as absconding for issuance of a proclamation under Section 82 CrPC.
ESSENTIAL CONDITIONS FOR PROCLAMATION OF PERSON ABSCONDING
Also Read: Judgments on Maintainability of Anticipatory Bail if accused declared Proclaimed Offender PO or Proclaimed Person
The issuance of proclamations in terms of Section 82 (1) CrPC should not be lightly taken by the Courts as it effects the right to life guaranteed under Article 21 of the Constitution of India and right to properly recognized under Article 300 of the said constitution. No person including an accused shall be appended and be declared an absconded offender unless a procedure established by law permits to such hard steps.
The Hon’ble High Court of Madras in the case title as Anandan@ Duglas Devanandha 2010 (4) Crimes 745 (Mad) had held the procedural aspects to issue an order of proclamation:
- Pending of non-bailable warrant is sine qua non;
- All efforts should have been taken to execute the warrant;
- The unexecuted warrant shall be returned alongwith a report;
- The court must satisfy itself that the accused is concealing and absconding so that the warrant cannot be executed before ordering proclamation as per section 82(1);
- The proclamation shall be effected as per section 82(2);
- The court shall record that the publication as per provision was complied with;
- Failing appearance of the accused before court;
- May proceed to examine witness;
- May transfer the case to long pending case register;
- May proceed to attach the property under Section 83;
- May pronounce the accused as proclaimed offender.
Issuance of Warrant of Arrest is a pre-requisite for issuance of process under Section 82.
Process under section 82 and 83 cannot be issued unless it is established that a warrant had already been issued against the person wanted and that person was absconding.
Simultaneous issue of warrant of arrest and a proclamation under Section 82(1) CrPC is illegal and improper vitiating the consequential order of attachment and ancillary order passed.
Though issuance of warrant arrest is a condition precedent for issuance of process under Section 82 but in every case where the warrant is to executed resort cannot be had to the provisions of this Section 82 and it may be necessary to examine the officer concerned, who had gone to execute the warrant and to the measures to serve the same.
The court issuing process must have reason to believe
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervaded Article 14 like a brooding omnipresence.
Further, there may be power to do a particular act, but there may not be not justification to exercise that power in a particular case.
Proclamation contemplated under Section 82 CrPC, can only be issued if court has reason to believe that person against whom a warrant is issued is absconding or is concealing himself to avoid execution of warrant. However, there must be some material on record to have reason to believe to issue process under Section.
Recording to Satisfaction
Under Section 82 the court issuing proclamation must record his satisfaction that the accused has absconded or concealed.
Place and time
The proclamation issued under Section 82 of CrPC requires appearance of the person against, whom warrant has been issued at a specified time at a specified place. The date fixed should not be less that 30 days from the date of publication of the proclamation. If that be so, simultaneous attachment of property, cannot be effected. The provision is mandatory. Where the period is less than 30 days, proclamation is liable to be quashed. (Rohit Kumar VS State of NCT Delhi). Failure to state time and place makes the proclamation a nullity. Thirty days are to computed from date of publication. Direction to appear within 30 days is illegal and if the period fixed is less than the time prescribed, the subsequent proceedings will be invalid.
Publication
The fact of publication with all formalities prescribed must be proved like any other fact and both the conditions in (i)(a) and (b) must be complied with. Omission to comply with the requirements of sub-section (2) vitiates the proceedings. Prosecution is to prove that proclamation was issued as prescribed by Section 82 CrPC.
The Court may also direct to publish the proclamation in daily newspaper in place where the absconder ordinarily resided {Sub-Section 2(ii)}
If proclamation under Section 82 CrPC is not 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, then no order under section 83 can be passed. (Ajay Singh Sijwali Vs Shyam Singh Bohra, 2013 CrLJ 4745 (UTR))
Also Read: Judgments on Maintainability of Anticipatory Bail if accused declared Proclaimed Offender PO or Proclaimed Person
Statement in Writing
The Statement in writing should state clearly that it was duly published and also the date of publication. If there is no statement, defects in the proclamation or in the manner of publication can be shown. It has also been held that no presumption arises unless requirements of section have been complied with.
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