Understanding The Phenomenon Of Proclaimed Offender

KEY TAKEAWAYS:-

• Who is a proclaimed offender?
• What are the consequences of becoming a proclaimed offender?
• Can the proclamation be challenged?

INTRODUCTION:-

The concept of a “proclaimed offender” resonates with an air of mystery and intrigue, often conjuring images of elusive individuals evading the clutches of justice. In legal parlance, a proclaimed offender refers to an individual against whom a warrant of arrest has been issued by a court, but who has managed to elude apprehension despite official efforts. This status encapsulates a complex interplay of legal, societal and procedural dynamics, shedding light on the nuances of law enforcement, due process and individual rights.

WHO IS A PROCLAIMED OFFENDER?

The term “proclaimed offender” is defined under Section 82 of the Code of Criminal Procedure. Essentially, when someone avoids appearing in court despite being summoned, the court can declare them as a proclaimed offender. This means that law enforcement agencies are directed to arrest and present the individual before the court. Their name and other details are published in newspapers, thereby branding them as criminals, in order to alert the public and aid in their apprehension. 

PROVISIONS RELATED TO PROCLAIMED OFFENDER:-

1. Section 82 - Proclamation for person absconding:-

This section empowers the court to issue a proclamation if it has reason to believe that a person against whom a warrant of arrest has been issued has absconded or is concealing himself to evade the execution of the warrant. 

2. Section 83 - Attachment of property of person absconding:- 

According to this provision, the court may attach the property if it has reason to believe that the person against whom a proclamation has been issued is likely to dispose of or conceal his property to prevent or delay the execution of the warrant. It is done by issuing a warrant to the police or other authorized officers, specifying the property to be attached.

3. Section 84 - Claims and objections to attachment:- 

This section provides a mechanism for any person other than the proclaimed offender who is aggrieved by the attachment of property to file claims and objections. If the claimant or objector can prove a legitimate interest in the attached property and objects within 6 months of attachment, the property will be exempted from the attachment and an inquiry will be conducted.

4. Section 85 - Release, sale and restoration of attached property:- 

The provision outlines the procedures for the release, sale and restoration of the attached property. If the proclaimed person appears before the court as per the proclamation, their property is released. If not, the property remains under attachment for 6 months, after which it may be sold by the State Government after a period of 2 years. If a person proves within this period that they were not absconding, any costs incurred during the attachment process are returned to them.

5. Section 87 - Consequences of non-appearance in response to proclamation:- 

This section specifies that if the person does not appear within the time specified in the proclamation, the court may declare them a proclaimed offender and proceed with further legal actions against them. Additionally, the court may also order the attachment of the person’s property under Section 83 if it deems necessary. This section reinforces the seriousness of failing to comply with the directives of a proclamation and underscores the legal repercussions for such non-compliance.

OFFENSES FOR WHICH A PERSON CAN BE DECLARED AS PROCLAIMED OFFENDER:-

• Committing house trespass to commit a capital offense or causing serious bodily harm or death during a break-in or break-out.
• Murder or culpable homicide with the intent to murder.
• Kidnapping for murder, kidnapping to cause significant injury, enslavement etc.
• Participating in a group trespassing on someone’s property resulting in major damage or death.
• Causing fire or explosive harm to destroy private or public property.
• Committing theft with the intent to injure or kill, attempting robbery or dacoity, committing fraud or theft intending to cause death or serious injury, attempting robbery or cheating with a deadly weapon or preparing to commit dacoity. 

WHEN CAN PROCLAMATION BE ISSUED?

Section 82 of the Criminal Procedure Code deals with the issuance of a proclamation when the court believes that a person is hiding or has absconded to avoid arrest warrants. This belief can be formed suo moto by the court based on available evidence or upon presentation of evidence by the prosecution. The proclamation, issued in writing, directs the accused to appear at a specific place and time which must be at least 30 days from the date of publication.

It's important to understand that the conditions laid out in this provision are mandatory. This means that a proclamation cannot be issued without first issuing a warrant. Furthermore, if the court lacks authority to issue a warrant, it also lacks authority to issue a proclamation (Bishundayal Mahton v. King Emperor). The proclamation serves as a notice to the accused, asking them to surrender. The court must strictly adhere to the provision, ensuring that the accused is genuinely absconding before issuing the proclamation. To ascertain this, the court may even examine the serving officer. Additionally, the court must record reasons for issuing the proclamation and cannot do so arbitrarily or whimsically.

Furthermore, it’s to be noted that a proclamation can be deemed illegal if the time given for appearance before the relevant authority is less than 30 days. Any orders of attachment based on such an illegal proclamation would also be deemed illegal, as established in the case of Jagdev Khan v. Crown.

CONSEQUENCES OF BECOMING A PROCLAIMED OFFENDER:-

When someone becomes a proclaimed offender by failing to appear in court despite summons, serious consequences ensue. Initially, a non-bailable warrant is issued under Section 70 of the Code of Criminal Procedure, empowering the police to arrest the individual anytime, anywhere, even if it means breaking into their hiding place. If the accused still doesn’t show up in court after such warrants are issued, they can be officially declared a “criminal accused” under Sections 82 and 83 of the CrPC.

• Any Indian citizen can arrest the accused at any time and from any location in India.
• The passport of the declared criminal is automatically confiscated to prevent them from leaving the country.
• If the accused was employed by the government at the time of being declared a criminal accused, they will be expelled from their position.
•  If the accused was not working for the government, they will be permanently barred from ever working for the government again, regardless of the duration of their proclaimed offender status.

ORDER OF ATTACHMENT OF PROPERTY:-

When a person becomes a proclaimed offender, their property can be attached according to Section 83 of the Code of Criminal Procedure, 1973. This is done to compel the person to appear before the court for trial proceedings.

Under Section 83, if the court has reason to believe that the proclaimed person is trying to dispose of or move their property out of the court’s jurisdiction, the court may order the attachment of the person’s property. This can be done through an attachment order issued in the prescribed form.

If the property to be attached is movable, it can be seized, or a receiver can be appointed as the court sees fit. For immovable property, the collector of the district where the property is located will oversee the attachment. If the property is perishable, it may be sold off and the proceeds will be used as directed by the court.

It’s important to note that property cannot be attached before 30 days from the issuance of the proclamation for the person absconding under Section 82, as observed in the case of Devendra Singh Negi v. State of U.P.

While the attachment of property may inconvenience the accused, it does not violate their rights, as affirmed by Article 300A of the Constitution of India, which provides for the right to property.

Furthermore, under Section 84 of the Code of Criminal Procedure, if any person other than the proclaimed person is affected by the attachment, they can file claims and objections. If the claimant or objector has a legitimate interest in the attached property and objects to the attachment within 6 months, the property will be exempt from attachment, and an inquiry will be conducted. If the claimant or objector passes away, their legal representative can pursue the claim or objection.

RIGHT OF RESTORATION OF THE ATTACHED PROPERTY:-

Section 85 of the Code of Criminal Procedure outlines the procedures for the release, sale and restoration of attached property. If the proclaimed person appears before the court in accordance with the proclamation, their property is released. However, if the person fails to appear, the property remains under attachment for a period of 6 months. After this period, if the property is still not claimed, it is sold by the State Government after another 2 years.

The property is handed over to the State Government because it is always under the absolute control of the state. If within the 2-year period from the attachment, a person can prove to the court that they were not absconding, any costs incurred during the attachment process are returned to them. This provision ensures that individuals have the opportunity to reclaim their property if they can demonstrate their innocence or lack of involvement in the proclaimed offense.

CAN THE PROCLAMATION BE CHALLENGED?

In the realm of legal proceedings, a proclamation issued under Section 82 of the Code of Criminal Procedure can indeed be challenged under certain circumstances. From a legal perspective, several grounds warranting such challenges may include:-

1. Procedural Deficiencies:- 

Any procedural irregularities or deviations from the prescribed legal process in the issuance of the proclamation can serve as grounds for challenge. This encompasses failures to adhere to procedural formalities or deficiencies in documentation.

2. Insufficiency of Evidence:- 

Should there be a lack of substantive evidence supporting the contention that the individual subject to the proclamation has absconded or is intentionally evading the execution of the warrant, the proclamation can be challenged on the basis of insufficient evidence.

3. Identity Disputes:-

Instances where there exists a genuine dispute regarding the identity of the individual named in the proclamation, asserting that they are not the intended subject sought by the authorities, can warrant a challenge based on mistaken identity.

4. Violation of Fundamental Rights:- 

Challenges may arise if the proclamation encroaches upon the fundamental rights enshrined within the legal framework, including but not limited to the right to a fair trial, the right to privacy or any other constitutional or statutory rights.

5. Arbitrariness or Unreasonableness:-

Where the issuance of the proclamation appears to be arbitrary, capricious or lacking in rational basis, it may be challenged on grounds of arbitrariness or unreasonableness, highlighting the necessity for adherence to principles of legal certainty and procedural fairness.

CHANGES INTRODUCED BY BNSS:-

1. Expansion of Definition of Proclaimed Offender:-

Previously, the CrPC only allowed individuals to be declared proclaimed offenders for specific offenses listed in the law, limiting the scope of who could be deemed as such. The BNSS expanded this provision by allowing anyone accused of an offense carrying a punishment of more than 10 years imprisonment to be declared a proclaimed offender. This broader definition aims to prevent individuals from evading legal processes for offenses not explicitly listed in the CrPC. Additionally, the BNSS introduces more detailed procedures for investigating offenses committed outside India and for forfeiting the property of proclaimed offenders residing abroad. 

2. Trial in Absentia for Proclaimed Offenders:-

Previously, the CrPC only allowed for the recording of evidence in the absence of the accused in certain circumstances. There was no provision for conducting the entire trial in the absence of the accused. The BNSS introduces the concept of trial in absentia for proclaimed offenders who have absconded to avoid trial. If there is little hope of apprehending the absconder, the court can proceed with the trial in their absence. The court must record reasons in writing for proceeding with the trial in absentia. 

CONCLUSION:-

When someone becomes a proclaimed offender, it means they have failed to appear in court despite a warrant being issued against them. The responsibility for arresting such individuals primarily falls on the police station where the offender resides, but any police officer can arrest them without a warrant. Additionally, anyone can apprehend a proclaimed offender and hand them over to the nearest police station without delay. The list of proclaimed offenders is regularly reviewed by the Police Superintendent and names may be removed if there’s insufficient evidence or upon consultation with the District Magistrate and Superintendent of Police. Moreover, when a person charged with serious offenses listed under the Indian Penal Code fails to appear as required, the court may declare them a proclaimed offender. This highlights the legal mechanisms in place to address the situation of individuals evading legal proceedings, ensuring accountability within the justice system.