SUMAN ROY (Technical Supervisor) 29 September 2023

Section 82 crpc under ni act

Respected Sir,

I had filed a case under the NI Act for a cheque bounce of Rs 12 lakhs on Nov 2020. Have attended a total of 12 hearings so far till date. Barring the first date, the accused has not attended any hearing so far and is in hiding. So far a total of 6 W.A / WPA has been issued, the address provided by the accused in court (under affidavit) is fake, he has shut his office & does not live in his residence, although the flat is still there in his name. Police reports for the W.A / WPA has verified that.

I have exhausted all my efforts to find the accused or his address, and it's about 3 years now. He is believed to be shifting from one locality to another and is hard to trace him down.

My query is, is it the right time & condition to file for section 82 or do I have to wait for more time? Is there any waiting period? Do I have to plead to the court to file sec 82 or will the court decide when it is to be done? And how long does it take for a court to declare him as absconding, under Sec 82 ie from the date of filing? I understand that Sec 83 is to be followed AFTER Sec 82 is applied to recover the cheque bounce amount through the seizure of his assets.

Profuse thanks in advance & any advice would be highly appreciated.

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T. Kalaiselvan, Advocate (Advocate) 30 September 2023

In your situation in my opinion section 82 cr.p.c. may not be applicable.

The Delhi High Court in 2021 has issued guidelines on proclaimed offenders that there should be specific procedures for the early arrest of proclaimed offenders. The procedure of sec 82 and 83 should not be followed habitually. The state shall take all necessary measures to prosecute and seize a person’s property after declaring them as proclaimed offender and commence legal procedures under Section 174A of the once they have been classified as a criminal, the Indian Penal Code. The Supreme Court in Sanjay Bhandari v. The State of NCT, held 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 gone into hiding, rendering the order unenforceable. Other than Section 82 (4), which only applies to those accused with IPC violations, there is no provision for designating someone as a declared criminal. The offence described in Section 82 (4) is serious, and it protects the prosecution of such crimes. In cheque bounce cases where the accused has been absconded, section 82(4) comes into play. In such cases along with the proceedings of section 138 NI Act, one more proceeding of section 82(4) commences.

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