Section 82CrPC: Proclamation of Person Absconding

1. 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 thirty days from the date of publishing such proclamation.
2. The proclamation shall be published as follows— (i) a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village; c) a copy thereof shall be affixed to some conspicuous part of the Court house; (ii) 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.
3. A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of Sub-Section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.
4. 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 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.
5. The provisions of Sub-Sections (2) and (3) shall apply to a declaration made by the Court under Sub-Section (4) as they apply to the proclamation published under Sub-Section (1).

Judgments

Criminal Procedure Code, 1973, Section 82 – Indian Penal Code, 1860, Sections 379 , 420 , 467 , 468 , 471 and 120B – Declared as proclaimed offender – Jurisdiction – Plea of petitioner that a person cannot be declared a proclaimed offender except in respect of offences mentioned in sub-section 4 of section 82 CrPC, 1973 – Merely because certain sections of IPC find mention in section 82 (4) CrPC. does not impliedly mean that other sections are excluded – Besides section shows that amendment introduced in Section 82 (4) is supplemental and not in derogation of sub-section 1 of section 82 – If a provision adds something to existing provision, it cannot be interpreted to mean that main provision is rendered otiose – Section 82 (4) does not lay down that in offences other than those specified therein, there would be a bar to declare accused a proclaimed offender – Petitioner rightly declared as proclaimed offender.

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Criminal Procedure Code, 1973 Sections 82 (1) and 82 (4) (as incorporated by Act 25 of 2005) – Indian Penal Code, Section 174A – Proclaimed offender – A person committing an offence not falling under Section 84 (4) (i.e. under Sections 302 , 304 , 364 , 367 , 382 , 392 , 393 , 394 , 395 , 396 , 397 , 398 , 400 , 402 , 436 , 449 , 459 or 460 of Indian Penal Code) can be declared proclaimed offender and will be subject to penalties and liabilities enshrined under law – The provisions of Section 82 (4) do not lay down that the persons accused of having committed offences mentioned under Section 82 (4) Cr.P.C. can only be declared a proclaimed offender –

(i) Further held that any person who has been declared a proclaimed person under Section 82 (1) Cr.P.C. or under Section 82 (4) Cr.P.C. will be at par for the purpose of all the liabilities and consequences attached to a person declared proclaimed offender – The absconder not falling under Section 82 (4) Cr.P.C. are liable under Section 174A Part 1 IPC and absconders under Section 82 (4) Cr.P.C. are liable under Section 174A Part II IPC after publishing of proclamation – Further held :-

(ii) Order of declaring a persons a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the sections mentioned in Section 82 (4) Cr.P.C.

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Criminal Procedure Code, 1973 Section 438 Negotiable Instruments Act, 1881 Section 138 Declared as proclaimed offender – Protection from arrest – Sought for – Person, who has been declared as proclaimed offender , cannot be granted anticipatory bail – Order proposed to be passed in this application, however, is not to grant anticipatory bail to petitioner/accused rather to protect him from his arrest so that while in transit to surrender in trial Court he is not arrested – Compromise arrived at between petitioner/accused and complainant also weigh while granting him protection to limited extent – Therefore, direction that petitioner/accused declared as proclaimed offender by Judicial Magistrate not to be arrested on his way to appear and surrender in trial Court – Hence, petition allowed. (2014) 2 Supreme Court Cases 171, Relied on.

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Criminal Procedure Code, 1973, Sections 82 , 83 and 173 – Proclaimed offenders – Attachment of property of proclaimed offenders – Police officer/I.O. cannot move the Court for cancellation of order of declaring proclaimed offenders and attachment of their property – Request of police was yet not filed – Court also allowed the application without knowing the fate of the FIR – Such a procedure is unknown to the law – Impugned order held not sustainable and quashed.

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Criminal Procedure Code, 1973 Sections 82 (1) and 82 (4) as added by Act 25 of 2005) – Proclaimed offender – An accused committing an offence under Section 420 , 467 and 471 I.P.C. and absconded – Proclamation published by Court requiring the accused to appear, but he failed to appear and pronounced as proclaimed offender under Section 82 (1) – Proceedings sought to quashed on the ground that offence did not fall under Section 82 (4) i.e. under Sections 302 , 304 , 364 , 367 , 382 , 392 , 393 , 394 , 395 , 396 , 397 , 398 , 400 , 402 , 436 , 449 , 459 or 460 of Indian Penal Code and therefore accused could not be declared proclaimed offender – Contention not tenable – Held :-

(i) Order of declaring a persons a proclaimed offender cannot be challenged solely on the ground that the offence alleged to have been committed by him is not included in the Sections mentioned in Section 82 (4) Cr.P.C.

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Indian Penal Code, 1860 Section 174A Criminal Procedure Code, 1973, Section 82 – Declared as Proclaimed offender – Period of 30 days required to be furnished to accused and that even in case Court subsequently adjourned matter, such adjournment beyond 30 days cannot be treated as compliance of provisions of Section 82(1) Cr.P.C., 1973 – Held, report of serving official and statement of serving official namely Constable reveals that just one day before nominated date for appearance that proclamation was effected – Subsequently, matter was adjourned by Trial Court and it was ultimately petitioner was declared a proclaimed offender – Declaration as Proclaimed offender set aside and FIR liable to be quashed.

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Criminal Procedure Code, 1973 Section 82 (1) Section 82 (1) of Criminal Procedure Code specifies proclamation for person absconding – An accused declared a proclaimed offender under Section 82 Criminal Procedure Code is not entitled to the anticipatory bail relief – Anticipatory bail relief can be sought by and granted to a person apprehending arrest until he is actually arrested – But an accused declared a proclaimed offender under Section 82 Criminal Procedure Code cannot be a person apprehending an arrest – An accused is declared a proclaimed offender only when inquiry reveals that he defeated arrest warrant and ignored proclamation – Even on merits, petitioner is not entitled to anticipatory bail.

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Criminal Procedure Code, 1973, Sections 482 and 82 – FIR – Quashing of – Petitioner was declared as Proclaimed Offender in FIR under sections 341 ,323 452 , 427 , 506 , 148 and 149 of Penal Code – Instant petition has been filed seeking quashing of order dated 24.01.2011 declaring him as Proclaimed Offender – Prayer of petitioner for stay of further proceeding before the trial Court had already been declined by High Court – Held, petitioner who is Proclaimed Offender and who has not submitted to the jurisdiction of Court cannot seeks invoking of inherent jurisdiction of High Court under section 482 of Code, 1973.

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Negotiable Instruments Act, 1881 Section 138 Dishonour of Cheque – Passport of the petitioner impounded on the ground that he had been declared proclaimed offender – Held that once the petitioner had surrendered before the trial Court and was released on bail his passport cannot be impounded keeping in view the order vide which, he was declared as proclaimed offender – Petitioner has a right to get his passport released – Held further that offence under section 138 is a bailable offence – Petitioner appeared and furnished bail bonds – No ground is left to impound the passport of petitioner.

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Indian Penal Code, Section 174A – Criminal Procedure Code, 1973, Sections 82 and 82 (4) – Indian Penal Code, Sections 406 , 498A , 506 and 120B – Proclaimed offender – Impugned order declaring the petitioner as proclaimed offender under Sections 406 , 498A , 506 and 120B I.P.C. – Impugned order cannot be sustained – However, he is a proclaimed person against whom proclamation stands published and he is liable to be proceeded under Section 83 Cr.P.C. by way of attachment of his property as also under Section 174A I.P.C.

Indian Penal Code, 1860 Sections 341 , 323 , 354 and 498 read with 34 Offence under – Accused failed to appear before the Magistrate on the date fixed, he was declared a proclaimed offender – Process of court is for dispensation of justice and not for harassment of parties – Insistence on appearance of the parties before the court would be proper only if it is necessary for some purpose – Order impugned, does not show as to why the court wanted the personal appearance of the petitioner on 7-11-2015 – Subsequent orders dated 18.12.2015 whereby the petitioner has been declared proclaimed offender and the order dated 23.01.2016 whereby order for attachment of property movable or immovable, has been passed cannot be justified – It is sine qua non for action under Section 82 of the Criminal Procedure Code that there must be a report before the Magistrate that the person against whom the warrant was issued has absconded or had been concealing himself – In the present case, there was no such report before the Magistrate and the proclamation order and the order of attachment were passed in complete breach of the provision of law – Orders impugned quashed – Application allowed with observations and directions.