What happens when a person is declared a Proclaimed Offender?

By Bharti Harsana

             


Bharti Harsana

Who is a Proclaimed Offender?

Section 82 of the Code of Criminal Procedure 1973 describes the process of proclamation for a person absconding. The section, about proclaimed offender, says that if the court is of the opinion and has reason to believe that the person against whom it has issued a warrant of arrest has absconded or is concealing himself so that he that he cannot be arrested, the Court can compel his appearance by publishing a written proclamation.

When such a proclamation is published in respect of a person who is accused of one or more specific offences mentioned in Section 82(4) of the Code and that person does not appear at the specific place and time as mentioned in the proclamation, such person may be pronounced as a 'Proclaimed Offender' under Section 82(4) of the Code of Criminal Procedure 1973.

Description of a Proclaimed Offender under Section 82(4) of the Code of Criminal Procedure 1973 -

"Where a proclamation published under sub-section (1) is in respect of a person 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 and 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 him a proclaimed offender and make a declaration to the effect."

Offences for which a person may be declared a Proclaimed Offender by the Court:

According to Section 82(4) of the Code of Criminal Procedure 1973, an absconder may be declared as a Proclaimed Offender by the Court if he is accused of committing offences punishableunder any ofthe following sections of Indian Penal Code 1860 -

         Section 302 and 304Murder; Culpable homicide not amounting to murder,

         Section 364 and 367: Kidnapping or abducting in order to murder; Kidnapping or abducting in order to subject person to grievous hurt, slavery etc.

      Section 382, 392, 393, 394, 395, 396, 397, 398, 399, 400 and 402:Committing theft after making preparation for death, hurt or restraint in order to commit the theft (382); Committing robbery or attempting to do so (392, 393); Causing hurt in committing robbery (394); Committing dacoity/ dacoity with murder (395, 396); Committing robbery/dacoity with attempt to cause death or grievous hurt (397); Attempting to commit robbery/dacoity when armed with deadly weapon (398); Preparing to commit or assembling to commit dacoity (399); Belonging to a gang of dacoits (400), Assembling for purpose of committing dacoity 402.

         Section 436:Causing mischief by fire or explosive substance with intent to destroy house, etc.

      Section 449, 459 and 460:Committing house-trespass in order to commit offence punishable with death (449); Causing grievous hurt/death while committing lurking house-trespass or house-breaking (459); Being member of group that causes grievous hurt/death while committing lurking house-trespass or house-breaking by night (460).

Consequences of being declared a proclaimed offender:

      Punishment for non-appearance in response to the proclamation Section 174-A of the Indian Penal Code 1860 punishes non-appearance in response to proclamation published by the court under Section 82 of the Code of Criminal Procedure 1973. The section says that if a person, who is declared as a proclaimed offender by the Court, fails to appear at the specified time and place as stated in the proclamation, he shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine.

Arrest of a Proclaimed Offender Any person who has been declared a Proclaimed Offender under Code of Criminal Procedure or by order of the State Government can be arrested by any-

-       Police Officer: Under Section 41(1)(c) of Code of Criminal Procedure a police office can arrest a proclaimed offender without an order from the magistrate or without a warrant;

-       Private Citizen: Section 43 of the Code of Criminal Procedure states that any private citizen of India can arrest a proclaimed offender and hand him over to a police officer/station without any unnecessary delay.

 

        Attachment of Property

The objective of attachment of property under section 83 is to compel the appearance of the person who has been proclaimed under section 82 and is avoiding arrest.

According to Section 83 of the Code, the Court that issues the proclamation under section 82, after recoding the reasons in writing, any time after issuing the proclamation,can also order the attachment of the property belonging to the proclaimed offender whether movable or immovable.

The Court may order the attachment of property and issue the proclamation simultaneously, if the Court is convinced by an affidavit or otherwise that the person in respect of whom the proclamation is being issued-

-          is about to dispose off either full or some part of his property, or

         is about to remove whole or some of his property from the local jurisdiction of the Court.

 

 No Anticipatory Bail

The Supreme Court in the case of Lavesh vs. State (NCT of Delhi)[1], observed that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid arrest and is declared as a proclaimed offender under of Section 82 of the Code, he is not entitled to the relief of anticipatory bail.

 

        Impounding of Passport

Section 10(3)(h) of the Passports Act, 1967 says that the passport authority can impound or revoke a passport or travel document if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document, has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document, has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made.

Landmark Cases

The Court in Rahul Datta vs. State of Haryana[2]observed that a person on avoiding execution of warrants of arrest under Section 82 (4) of Code of Criminal Procedure can only be declared a 'proclaimed offender' whereas a person under other provisions of IPC and the laws can be declared to be a 'proclaimed person' in terms of Section 82 (1) of the Code.

In the case of Smt. Deeksha Puri vs State Of Haryana[3] the court remarked that the moment a proclaimed offender is arrested or appears at the place and time required by the Court or surrenders before the Court or authority issuing warrants or proclamation, the order of declaration of proclaimed offender would cease to be operative.

The Apex Court, in the case of Jayendra Vishnu Thakur Vs. State of Maharashtra and another[4]has been defined the term 'absconding' on the basis of dictionary meanings and that the primary meaning of the word is, "to hide". It means to depart secretly or suddenly, especially to avoid arrest, prosecution or service of process.



[1](2012) 8 SCC 730

[2]CRM-M-34328-2011

[3]CRM M-359 of 2012

[4](2009) 7 SCC 104


About the Author:

Law Student at K. R. Mangalam University


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