Proclaimed Offender: The Law and Case-Laws

The Author, Rangasree M., is a 2nd year, BA LLB student at Symbiosis Law School, Hyderabad. She is currently interning with LatestLaws.com. 

Introduction

The proclaimed offender is a person eluding the authorities and the law. According to Section 82 of the Code of Criminal Procedure, 1973, “If any Court has reason to believe (whether after taking evidence or not) 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 thirty days from the date of publishing such proclamation.” The small action of releasing a proclamation or labelling someone a “proclaimed offender” can have far-reaching legal ramifications in the realm of criminal culpability. Sections 82-86 deal with situations in which, after an arrested person has been issued against an alleged criminal, there are reasonable grounds to assume that the accused is fleeing or otherwise hiding, preventing the warrant from being executed. In such instances, the Court has the authority to issue formal proclamations compelling such a person to appear before it. The Court issues a warrant of arrest on the officer’s request when the accused does not appear before the Court or runs away from the arresting officer.

Repercussions of being a Proclaimed Offender –

The Court will issue a non-bailable warrant if the accused fails to appear before the Court after a bailable warrant. The procedure is explicitly stated in Section 70 of the Code of Criminal Procedure. It talks about the form and duration of the warrant, “(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. (2) Every such warrant shall remain in force until the Court cancels it which issued it, or until it is executed.” Despite the non-bailable warrant, if the accused fails to appear before the Court, the judge can rule him to be a “criminal accused” under sections 82, 83 of the Code of Criminal Procedure.

If any individual is held as a “proclaimed Offender,” any citizen of India can make an arrest against the proclaimed offender. The passport of the proclaimed offender is ceased and is prohibited from leaving the country. If the accused were working for the government during the period of the unlawful pronouncement, they would be banished. If they were not, they would be barred from working for the government at any level for the rest of their lives, even if they were just a proclaimed offender for just one day.

Process of issuing proclamation –

• It is read out in public in a well-known area in the city or hamlet where the individual usually lives.
• It must be fastened to a central section of the home or building where such person typically dwells or to a prominent location in such township or hamlet. A copy of the same shall be placed in the principal part of the Court.
• If the Court sees appropriate, it can additionally order that a record of the proclamation be broadcasted in a publication circulating in the person’s habitual residence. A written statement by the Court declaring that the declaration was lawfully issued on a particular day in the fashion described in Section 80, subsection (1) will be regarded as conclusive proof that the criteria of this section were met and that they issued a proclamation.
• Suppose a person charged with 402, 436, 499, 459, or 460 of the Indian Penal Code, 1860 who has committed an offense under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400 does not appear at the location and time indicated in the proclamation. In that case, after investigating the case if it deems necessary, the Court may declare the accused of violation and make the statement accordingly. 

Crimes for which the absconding person is declared a proclaimed offender by the Court–

If an individual intends one of the crimes or offenses listed below and then flees, they may be designated a proclaimed offender under Section 82 of the Criminal Procedure Code.

• Murder, culpable homicide causing murder.
• Slavery, abduction, kidnapping for murder, kidnapping to cause substantial harm to a person
• Someone who has trespassed on someone’s property commits a criminal act that carries the death penalty in the instance of a break-in or break-out, anybody who causes severe damage or death.
• Whoever commits theft with the intension or intent to kill or injure someone, who commits or attempts to commit robbery, who commits Dacoity or Dacoity with murder, who commits fraud and theft with the intension or purpose to cause death or serious injury, who attempts to commit robbery or deceit while armed with a deadly weapon, and who sets up to commit the crime of Dacoity.
• Somebody sets flames to or blasts explosives intended to destroy private or public property.
• Entering on someone’s property as a group member threatens catastrophic damage or death.

The instance when the Court can proclaim the person accused –

In the case Rohit Kumar v. State of NCT, 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.

If the Court has a reason to believe that a person called in a warrant has gone underground or has concealed so that the court order cannot be enforced, the Court may issue a written proclamation against the alleged perpetrator. The accused must show up in a particular location and time within 30 days from publishing the declaration.

Case Laws –

• State of Madhya Pradesh v. Pradeep Sharma – Anyone deemed an absconder or a proclaimed criminal under section 82 of the Criminal Code Procedure is ineligible for anticipatory bail relief. 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 just 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.”
• Lavesh v. the State of NCT – In this case, the Court rightfully said that, In most cases, giving anticipatory release is not an option while the accused is ‘absconding’ and labeled a ‘proclaimed offender.’ We reaffirm that an individual fleeing the country or hiding to prevent the implementation of a warrant and has been labeled a proclaimed criminal under Section 82 of the Code is not eligible for anticipatory bail relief.
• Sanjay Bhandari v. the State of NCT - The lawyer’s contention that any individual against whom a proclamation has been issued is a proclaimed criminal, regardless of Section 82(4) requirements, was rejected by the Delhi High Court. The Court decided that a proclamation can only be made under Section 82 (1) of the Criminal Procedure Code against someone who has been served with a court order and has fled or gone into hiding, rendering the order unenforceable. Other than Section 82 (4), there is no provision for declaring a person a proclaimed criminal, and Section 82 (4) only applies to those charged with the IPC provisions enumerated above. The Section 82 (4) offense is grave, and it serves as a protection for the prosecution of such crimes. The High Court, in this case, however, stated that no such safety is available for someone accused with less serious offenses. The Court also said, “The legislature’s intention cannot be that such adverse consequences would automatically be attracted to a person qua whom a proclamation has been published and is accused of less serious offenses. But that they would be attracted after the safeguard stipulated in Section 82(4) has been followed for a person who is accused of serious offenses enumerated in Section 82(4).”
• Arun Kumar Parihar v. the State of NCT - Sections 406 (criminal breach of trust), 420 (cheating), and 120B (criminal conspiracy) of the Indian Penal Code, 1860, were used to file the FIR in the case of Arun Kumar Parihar v. State. According to the Delhi High Court, a person prosecuted under sections 406, 420, and 120B of the Indian Penal Code cannot be deemed a “proclaimed offender” under Section 82 (4) of the Code of Criminal Procedure. The Delhi High Court overturned the lower Court’s decision, ruling that the provisions of the legislation used by the Investigating Agency are not covered by Section 82(4) of the Criminal Procedure Code, 1973, so the petitioner cannot be deemed a proclaimed criminal. To reach an amicable conclusion, Judge Anu Malhotra cited several precedents, including Sanjay Bhandari v. the State of NCT. 

Recent Guidelines for a Proclaimed Offender –

• On July 2, 2021, the Delhi High Court announced instructions for those fleeing the country as proclaimed offenders under Section 82 of the Criminal Procedure Code. The standards that courts should be followed prior to designating a person as a criminal and the follow-up action that law enforcement authorities must conduct were determined by a single bench led by Justice JR Midha. The orders must include specific procedures for the early arrest of proclaimed offenders, such as a directive that the Police Officials build up a digital monitoring system that will provide admittance to particular departments to track down such proclaimed offenders.
• The Delhi High Court further believed that designating a person a criminal would violate Section 174A of the Indian Penal Code, which might result in a term of up to 3 or 7 years in prison. It is vital to guarantee that Sections 82 and 83 of the Criminal Procedure Code are not habitually implemented. A good process is followed since it impacts a person’s life and freedom under Article 21 of the Indian Constitution. The state shall take all necessary measures to prosecute and seize a person’s property once they have been proclaimed an offender and commence legal procedures under Section 174A of the Indian Penal Code once they have been designated a criminal.
• The rules were triggered by the Delhi High Court’s handling of two cases in which it was asserted that the petitioners had been deemed offenders without following proper procedure. The Court approved their pleas and annulled the orders labelling them “proclaimed offenders” after ruling that they had not been served with adequate notice.

Conclusion

Arresting is primarily the duty of the police officer in the station near the place the criminal resides. On the other hand, a proclaimed offender can be arrested by any police officer in any jurisdiction without a warrant or an official confirmation from the Magistrate. A proclaimed offender can be apprehended by anybody and handed over to the local police station officer or a police station without hesitation. The Police Superintendent reviews the database of Proclaimed Offenders and people involved in the investigations regularly. After consulting with the Local Authority and the Superintendent of the district in which such a person was pronounced, the names of the Proclaimed Offenders are erased if adequate proof is documented or available. When a violating defendant is apprehended, a statement is given to the police office and the district where he lived to take his name off the list. Similarly, the name of the person who received threats after the proclaimed died is removed. To summarise, a proclaimed offender is somebody who fails to appear in court even after a warrant has been issued against him. If a person does not appear for certain charges, they are the proclaimed offender. 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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