PROCLAIMED PERSON AND A PROCLAIMED OFFENDER: STARK DISSIMILARITY, YET, OFTEN OVERLOOKED
"Interpretation of laws and it's right application in its true spirit is the bedrock of any judicial mechanism and a legal system1."
Sections 82 and 83 of the Code of Criminal Procedure, 1973 ("CrPC/ Code") deal with the provisions relating to proclamation and attachment of property of person absconding, respectively. The said two provisions are, inter alia, constituents of Part C-'Proclamation and Attachment' of Chapter VI of the Code, dealing with; 'Processes to compel Appearance' and are aimed to ensure that the warrants issued by Court(s) do not remain unexecuted. Significantly, the provisions of Sections 82(1) CrPC, empower a Court, having 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, to issue 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." Further, as per the provisions of Section 83 of CrPC, the Court issuing the proclamation are, inter alia, conferred with a power to order attachment of any property, moveable or immovable, or both, belonging to a proclaimed person, "for reasons to be recorded in writing, at any time after the issue of the proclamation." It is trite law2 that the, "sine qua non for an action under Section 82 is the prior issuance of 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. Warrant of attachment will be preceded by an order of proclamation." The law is further settled3 that before declaring an accused as an absconder, "the court has to be satisfied that accused had left their permanent residence or they are avoiding service or there is no chance of arrest in near future." Appositely, the Hon'ble Apex Court4 has clarified that to be termed an 'absconder' in the eye of law, in fact, "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 the hiding place be his own home."
Pertinently, the provisions relating to the manner of publication of proclamation and the presumption of such publication are provided under sub-sections (2) and (3) of Section 82 CrPC, respectively. Further, the consequence(s) of failure on the part of an accused to appear before Court, at the place and on time, as specified/ indicated under the proclamation, for certain specific offences is provided under Section 82(4) of the Code. Significantly, sub-sections (4) and (5) of Section 82 CrPC were inserted under the Code pursuant to the Code of Criminal Procedure Code (Amendment) Act, 2005. Appositely, while on one hand, Section 82(4) CrPC authorises Court(s) to declare a person as proclaimed offender under the circumstances specified therein, on the other hand, provisions under Section 82(5) of CrPC clarify that the procedure/ provisions as envisaged under Section 82(2) and Section 82(3) of CrPC, "shall apply to a declaration made by the Code under such-section (4) as they apply to the proclamation published under sub-section (1)." Notably, the power of the Court(s) as envisaged under the provisions of Section 82 CrPC is not of a feeble nature, for the law penalizes the non-appearance of an accused in response to a proclamation issued under section 82 CrPC under Section 174A of the Indian Penal Code, 1860 ("IPC"). In fact, as per the said provision (S. 174A IPC), "whoever fails to appear at the specified place and the specified time as required by a proclamation published 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."
Considering the import of declaration of proclamation under Sections 82 CrPC and the consequences which may ensue for the non-compliance of the terms thereof, the Courts have consistently cautioned against the excessive and unrestrained exercise of such powers. In fact, in this regard the Hon'ble High Court of Jharkhand in Md. Rustum Alam and Ors. v. The State of Jharkhand5, while noting the provisions of Section 82 CrPC, inter alia, observed, "the Court has to have sufficient materials before him to reach to a conclusion to believe that a person, against whom warrant of arrest has been issued, is absconding or is concealing himself, and it is not possible for the authorities to execute the warrant of arrest. This satisfaction has to be recorded in the order while issuing processes under Section 82 of the Code…. Non-recording of subjective satisfaction in the order will make the Order bad and a non-speaking one. A non-speaking order involving a procedure, which attracts a penal offence (if the order is not complied with), cannot sustain in the eyes of law." The Hon'ble Court further emphasised on a need of mandatory compliance of the conditions as envisaged under Section 83 CrPC, prior to the issuance of the order of attachment. Similarly, the Hon'ble High Court of Delhi in Sunil Tyagi v. Government of National Capital Territory of Delhi & Anr.6, vehemently affirmed, "declaring a person as a Proclaimed Offender leads to a serious offence under Section 174A IPC which is punishable for a period upto 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law should be followed." However, at the same time, the Hon'ble Court emphasized, "once a person has been declared as a Proclaimed Offender, it is the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174A IPC."
Therefore, appreciation the variance of magnitude of the consequences under Section 174A IPC, which may result from the hasty exercise of powers under Section 82 CrPC, the reasons of disregard/ neglect of the 'stark difference' between the provisions of Section 82(1) and 82(4) CrPC is incomprehensible. Pertinently, the provisions of the Section 82(4) CrPC, unambiguously declare, "[w]here a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under Sections 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." Clearly, as per the said provision, an accused may be declared as a proclaimed offender only for the offences specified therein. However, despite an explicit assertion under the said provision, it is often observed that the power of such declaration is frequently exercised for even the cases/ offences not specified/ enumerated under Section 82(4) CrPC. The same further despite the fact that the limit on exercise of Court's jurisdiction under Section 82(4) CrPC has been clarified and highlighted in various precedents, from time to time. In this regard, the Hon'ble Punjab and Haryana High Court in Rahul Dutta v. State of Haryana7, while appreciating the provisions of Section 82 CrPC and Section 174A IPC, inter alia, observed, "[t]here is stark distinction between a proclaimed person and a proclaimed offender and for that reason, there is a difference of punishment provided under Section 174-A IPC". The Hon'ble Court, in fact, highlighted the difference between a proclaimed person and a proclaimed offender by noting, "the terms "proclaimed person" and "proclaimed offender" have different connotations. A person who is evading the execution of warrants of arrest issued under the particular Sections of the IPC which are mentioned in Section 82(4) Cr.P.C, can only be declared to be a proclaimed offender and the persons under the other provisions of the IPC and the laws, can be declared to be a proclaimed person in terms of Section 82(1) Cr.P.C." Subsequently, in Sanjay Sarin v. State8, the said observations were asserted by the Hon'ble High Court by noting, "simultaneous reading of section 82 Cr. P.C.' and 174 A IPC would clearly point to the situation where the persons against whom proclamation is issued under section 82(1) Cr. P.C.' would be divided into two categories. The first category would be of the persons who are accused of an offence other than the one mentioned in section 82(4) CrPC' and the second category of the persons accused of an offence mentioned in section 82(4) CrPC' For these two categories of persons, punishment is differently provided by section 174A IPC." Similarly, the Hon'ble High Court of Delhi in Sanjay Bhandari v. State (NCT of Delhi)9, while dealing with the issue, "whether a person who is not accused of any of the offences mentioned in section 82(4) Cr.P.C. can be declared a Proclaimed Offender?", held, "pronouncement as a proclaimed offender can only be issued if he is accused of the offences stipulated in 82(4) and that also, only after the court has made such inquiry as it deems fit. There is no provision, other than section 82(4) in the Cr.P.C., under which the court can pronounce a person as a proclaimed offender."
Pertinently, the Hon'ble High Court of Delhi in Sanjay Bhandai Case10, resolutely confirmed that a person who is accused of offences other than the ones enumerated in section 82(4) and qua whom a proclamation has been published under section 82(1) would be a 'Proclaimed Person' and shall not be deemed to be a 'Proclaimed Offender'. In fact, the Hon'ble Court vehemently eschewed the contention of the State to the effect that every person in respect of whom a proclamation has been published is deemed to be a proclaimed offender irrespective of the provisions of Section 82(4) under the observations that under such case(s), "the consequence would be that a person qua whom a proclamation has been published and is not accused of any of the offences mentioned in Section 82(4), would be deemed so, without the safeguard of an inquiry stipulated in section 82(4). This can certainly not be the intention of the legislature. The offence enumerated in section 82(4) are serious in nature. It could not be the intention of the legislature that qua a person who is accused of offences that are serious in nature, the safe guard of an inquiry is stipulated and no such safeguard is stipulated qua a person who is accused of offences that may not be so serious." The Hon'ble Court, at the same time, diverged with the views expressed by the Hon'ble Punjab and Haryana High Court in Rajiv v. State of Haryana11 and Deeksha Puri v. State of Haryana12 by distinguishing that in the said decisions, the provisions of Sections 174 and 174A IPC were not duly appreciated by the Hon'ble High Court of Punjab and Haryana. In fact, in the present case, it was duly noted by the Hon'ble High Court of Delhi, "basic reasoning for the learned judge to hold that all persons qua whom a declaration has been published under section 82(1) Cr.P.C. would be deemed to be proclaimed offender is that any other interpretation would render the provisions of section 174A IPC otiose and redundant."
Consequently, the provisions under Section 82 of CrPC are quite clear and unequivocal in their scope and extent of applicability, apparent from a bare reading of the said provision. Further, the stark difference existing between the declaration of proclamation and proclaimed offender has, consistently, been emphasized by numerous judicial precedents. Nevertheless, despite such apparent dissimilarity between a 'proclaimed person' and a 'proclaimed offender' and the disparate penal consequences which may entail in either of the case(s), the reluctance of judicial/ legal machinery to acknowledge the same is quite disheartening. Undoubtedly, declaration of a person/ accused of an offence as a proclaimed offender may often prove to be more fruitful and effective in the execution of the processes/ warrants. However, the same may not, by itself, be a sufficient enough reason to negate the explicit and unambiguous dictates of law. It is trite law13, "[a]n order which is not in conformity with the provisions of law or is beyond the scope of law would be per se incurium as the decision given in ignorance in terms of the statutes or rule having force of statute or being not in conformity with the statutory provisions would not be a binding precedent as it is said to be given through inadvertence." Accordingly, the Courts cannot opt to be unmindful of the provisions of law, in particular of the 'stark dissimilarity' under the various sub-sections of Section 82 CrPC, while pronouncing an accused as a proclaimed person or a proclaimed offender. However, it is to be emphasised that in case any ambiguity/ difference of opinion still persists in the interpretation or understanding of the scope and applicability of the provisions under Section 82 CrPC, the same may be easily resolved by the Hon'ble Apex Court, which would certainly be a 'welcome step' in this direction.
1 Henrietta Newton Martin 2 Indra Mani Pandey v. State of U.P., 2012 SCC OnLine All 2857 3 Abdul Rehman v. State of Rajasthan, 2007 SCC OnLine Raj 153 4 Kartarey v. State of U.P., (1976) 1 SCC 172 5 MANU/JH/0578/2020 6 Crl.M.C. 5328/2013 & Crl.M.A. 19244/2013 (dated 07.01.2021) 7 2011 SCC OnLine P&H 16868: (2012) 2 RCR (Cri) 585 8 2012 SCC OnLine P&H 22817: (2013) 3 RCR (Cri) 138 9 2018 SCC OnLine Del 10203 10 Decision and views expressed in Sanjay Bhandai Case were affirmed by the Hon'ble High Court of Delhi in Arun Kumar Parihar v. State (Govt. NCTD), Crl.M.C.No.863/2021 (dated 26.03.2021) 11 Crl Misc. No. M-30146 of 2011, decided on October 12, 2011 12 2012 SCC OnLine P&H 20122 : (2013) 1 RCR (Cri) 159 (2) 13 Refer to Municipal Corpn. of Delhi v. Gurnam Kaur, (1989) 1 SCC 101 and Laxminarayan Vishwanath Arya v. State of Maharashtra, 2007 SCC OnLine Bom 645 : (2007) 5 Mah LJ 7
Mr. Varun Sharma is a practicing Advocate based in Delhi and has an experience of around fifteen years into the profession, dealing extensively with white collar crimes, insolvency related matters and other civil and commercial disputes. In past, Mr. Sharma was associated with the Dispute Resolution practice at L&L Partners Law Offices, ALA and Tiwari & Associates. Mr. Sharma, in past, appeared in several proceedings before the Hon’ble Supreme Court and several High Court(s) across India and was an integral part of the defence team in ‘2-G Scam’ matter, before the concerned Courts.
Mr. Abhishek Goyal is an Advocate based in Delhi and has an experience of around eleven years into the profession, commencing his journey in the year 2010. In past, Mr. Goyal worked under the able guidance of Hon’ble Ms. Justice Mukta Gupta and Hon’ble Mr. Justice V.P. Vaish, Hon’ble Judges of the Hon’ble Delhi High Court and was associated with the Dispute Resolution Team at L&L Partners Law Offices, Delhi and Chadha & Chadha IP, Gurugram (prior thereto) for a period of more than five years. His areas of interest and expertise involve; Insolvency and Bankruptcy Laws, Arbitration Laws, other Civil and Criminal Laws, etc.