PROCLAIMED OFFENDER
Proclaimed offender is a person who is untraceable by the court or even by the police officials. A person does not appear before the trial court during trial or by before the investigation agency a bailable warrants were issued. Thereafter, the person does not appear after the bailable warrants then Non Bailable Warrants will be issued. Furthermore, the person missed Non Bailable Warrants and court apprehends that the person is concealing himself from the trial then the process of Section 82 Cr.P.C. will be initiated, which is called Proclaimed Offender.
DEFINATION:
Proclaimed Offender define under Section 82 Cr.P.C as “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 specific place and at a specified time not less than 30 from the date of publishing such proclamation.”
How the proceeding of Section 82 Cr.P.C. commence:
Before initiating proceeding of Section 82 Cr.P.C. the court or the investigation agency issue:
-
Bailable Warrant :
It is a type of warrant which is issued by a judge or magistrate through the SHO of the concerned police station of its jurisdiction. The main reason for issuing bailable warrant is to compel the accused or a person to appear before the Hon’ble court. It is bailable in nature that when these warrants are executed, the accused will be released on bail and not arrested.
-
Non Bailable Warrants :
This is an arrest warrant which is issued by judge or magistrate through the SHO of the concerned police station of its jurisdiction. If a person is arrested in the execution of non-bailable warrants then the person shall apply for bail. The delhi high court in the case of FAHIM v. STATE held that the trial court cannot issue Non-bailable warrant in First call, except in case of genuine apprehension of absconding of accused.[1]
Even after NBWs the person does not appear then how the court will secure the attendance of the accused?
-
Proceeding of Section 82 Cr.P.C.:
Supposed, the accused did not appear when court issued Bailable Warrants and Non Bailable Warrants. Then the court has reason to believe that the person against whom the warrants are issued is hiding or concealing himself so that the warrants, which were issued could not be executed, such court may order to publish a written proclamation requiring the person to be present before the court on specific date, place and time not less than 30 days from the date of such proclamation. Furthermore, the person does not appear before the court then the said person declared a proclaimed offender of proclaimed person and this proceeding will be in force until its executed, arrest of the person or surrender.
WHO IS PROCLAIMED ODFFENDER:
A Proclaimed offender is a person who is accused of offences such as 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 406 of the Indian Penal Code (45 of 1860) and such person fails to appear before the court. The court may after making such inquiry pronounce him a proclaimed offender.
Who is Proclaimed Person:
The Proclaimed person is a person who is accused of offences other than the offences which are mention above or we can say the person who falls under the section 82(1) Cr.P.C. is a proclaimed person.
How the Proclamation is published?
-
It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
-
It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
-
a copy thereof shall be affixed to some conspicuous part of the court-house;
-
The court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. In the case of Khalid Anwar Alias Anwar Khalid vs. Central Bureau Of Investigation, the Allahabad High Court ruled that the petitioner is not “declared” a proclaimed criminal until and unless a written proclamation is made by Section 82 CrPC. The Court noted that, while a proclamation under Section 82 (1) CrPC was issued against the applicant on August 1, 2023, requiring him to appear before the Court on September 2, 2023, there was no evidence on record that the proclamation had been ‘published’ as required by Subsection (1) of Section 82 CrPC. Furthermore, the Court noted that the Court issuing the proclamation had not issued any written declaration, as required by Sub-section (3) of Section 82 CrPC, stating that the proclamation was legally published in the manner prescribed in clause (i) of sub-section (2).[2]
How does declaring proclaim offender affects accused:
Section 174A of Indian Penal code have provision that Non-appearance in response to a proclamation under section 82 of Cr.P.C. Whoever fails to appear before the concerned court on the specific date and time and place 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. If the Proclaimed Offender does not surrender or is not traced within a period of six months of being declared a Proclaimed Offender, he must be prosecuted under Section 174-A IPC.[3]
It means a new case is filed by the concerned court under section 174A of IPC if the person does not appear before the court.
Whether a person can be declared Proclaimed offender under the offence of 138 NI Act?
No, the person cannot be declared as Proclaimed offend in the case of 138 NI Act. However, the said person will be declared as Proclaimed Person because section 138 NI Act is not provided under section 82(4) Cr.P.C.
Will Anticipatory Bail be granted to Proclaimed Offender:
No, the Hon’ble Supreme Court in the case of SRIKANT UPADHYAY VS. THE STATE OF BIHAR held that an accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82(1) Cr.P.C. is pending against him.[4]
What after when a person does not appear after declaring a Proclaimed offender:
The Court, after declaring a Proclaimed Offender, shall direct the police to trace and identify his movable and immovable properties and file a status report with respect to his assets. Thereafter, in accordance with Section 83 Cr.P.C., the Court shall proceed to attach movable and immovable properties of the Proclaimed Offender.
How to cancel or stayed Proclaimed offender proceedings:
To effectively stay the proclaimed offender proceedings, the recommended course of action would be to voluntarily appear before the court along with a bail application. This proactive step demonstrates a willingness to engage with the legal process and address the situation responsibly.
Legal remedies available to the Proclaimed Offender or Proclaimed Person are:
-
Quashing of Proclamation
-
Surrender and Bail Application
-
Challenging Arrest Warrant
-
Appeal Against Proclamation Order
-
Filing Revision Petition
-
Exploring Settlement
CONCLUSION
The status of a proclaimed offender under Section 82 Cr.P.C. is a serious legal designation that arises when an individual accused of certain specified offenses fails to appear before the court despite the issuance of warrants. The process involves the court issuing proclamations requiring the accused to appear within a specified timeframe. Failure to comply can lead to severe consequences, including prosecution under Section 174A of the Indian Penal Code.
[1] FAHIM v. STATE (2023)
[2] Khalid Anwar Alias Anwar Khalid vs. Central Bureau Of Investigation
[3] 2024 LiveLaw (PH) 25
[4] SRIKANT UPADHYAY VS. THE STATE OF BIHAR (2024 LiveLaw (SC) 232
