Delhi HC lays down comprehensive guidelines for issuing proclamation under Sec 82 CrPC

The Delhi HC on June 28, 2021 {SUNIL TYAGI vs GOVT OF NCT OF DELHI & ANR} held that the Investigating Officer may apply to a Magistrate for issuance of warrant of arrest where the offence is cognizable, non-bailable and the accused/suspect is evading his arrest. It was held that before applying for warrant, the Investigating Officer shall show the efforts made to arrest the accused. 

The Single Judge of Delhi High Court, Justice J.R. Midha, further held that no warrant shall be issued against an accused merely on the ground that he is not available to the Investigating Officer/Police for joining the investigation. It was also held that the police shall file an affidavit disclosing the date, time and mode of service as well as the attempts made to search and identify the accused. 

 

NBW DURING TRIAL

The Delhi HC held that at the stage of trial, the accused is normally on bail. It was held that the abscondance during trial is more serious than abscondance during investigation as the accused has already crossed the stage of investigation and has been summoned by the Court to face trial and if the Charge(s) has/have been framed, the finding of existence of prima facie case against the accused is on record. It was held that mere non-appearance of accused without any justified reasons is sufficient justification for issuance of warrants of arrest including NBW by the Court. 

 

Guidelines for cases instituted on private criminal complaints

The HC directed that the complainant shall share all available addresses of the accused known to him i.e. current/temporary/ permanent and workplace. It was directed that the complainant shall file documentary proof of the address of the accused, if available. It was further directed that post entering of appearance by the accused, the accused shall disclose additional addresses other than those mentioned in complaint to the Court with address proof. It was also directed that in complaint cases, accused shall furnish name, address, relation and other details of his three relatives for future communication, and the photograph and the identity proof of the accused and surety to be affixed on the bail bond. 

 

Guidelines for conditions to be imposed at the time of granting bail

At the time of grant of bail, it was directed by the HC that the Court shall direct the accused to (i) disclose the address where they ordinarily reside or any other address, (ii) share a copy of their Government ID proofs such as Aadhar, PAN Card, driving license, Voter ID, Ration card etc. It was also directed that the accused shall furnish the relevant information relating to his residential/permanent address, details of his family, contact details including telephone/mobile numbers/email etc. in the format of Annexure B (as per judgment) to the court at the time of grant of bail in addition to Form 45 CrPC.

 

Guidelines for Issuance of Proclamation

The Delhi HC directed that the police has to submit a report before the Court that the person against whom the warrant was issued, has absconded or is concealing himself. It was held that mere non-availability at the address is not sufficient unless the concealment is deliberate to avoid arrest. It was also held that a person who had gone abroad before the issue of the warrant of arrest cannot be said to be absconding or concealing. However, it was held that if the accused left India before proclamation but continues to remain outside India with a view to defeat or delay the execution of the warrant, he shall be taken to be absconding.

The Delhi HC directed that the police officer shall file an affidavit/status report to disclose the addresses and phone numbers/email addresses (if available) of the accused against whom the warrants had been issued and the reasons for inability to secure the presence of the accused before the Court.

 

Pre-requisites to the issuance of a proclamation

The Delhi HC directed that prior to issuance of a proclamation under Section 82(1) CrPC,

(i) The police officer may file an Affidavit/Status Report disclosing:

(a) All available addresses and phone numbers/email addresses (if available) of the person against whom the warrant has been issued along with proof of the said addresses, phone numbers/email addresses and any other details available in the information sheet with underlying documents demonstrating the same; 

b) particulars of proof of service of the arrest warrant at the said address (i) by post; (ii) by hand (iii)mobile number, (iv) email address (if any) and (v) service on a family member/neighbor along with credible proof of the same; 

c) In the event warrant has been affixed on a conspicuous part of the house where the person ordinarily resides, town/village/ courthouse, the police officer must annex a picture showing that warrant has been affixed in such manner along with his affidavit. The picture must be taken in a manner that makes it clear to the Court that the warrant has in fact, been affixed at the said house;

(d) Reasons for inability of the police officer in securing presence of the person against whom warrant is issued;

(ii) The Court must pass an order dealing with the contents of the Affidavit/Status Report and reasons given by the police officer for arriving at a conclusion that the person has absconded or is concealing‟ himself or reasons for inability of the officer in securing presence of the person.

 

The HC further held that before issuing a proclamation, the Court shall examine the officer with respect to the measures taken by him to execute the warrants. It was held that issuance of an arrest warrant and the accused found absconding, are pre-conditions for issuing proclamation. It was also held that simultaneous issuance of both the processes, namely, warrant of arrest and proclamation is ex-facie contradictory, since it is only after the former that the latter can be issued where the concerned person has absconded or is hiding.

The Delhi HC further held that prior to publication under Section 82(2)(ii) CrPC the Police Officer may be mandatorily required to file an Affidavit disclosing: A picture showing that proclamation has been affixed in a conspicuous place of the house where the person resides. It was held that the picture must be taken in a manner that makes it clear to the Court that the proclamation has in fact, been affixed at the said house; The Court must pass an order dealing with the contents of the Affidavit and statement of the process server along with its reasons for directing publication under Section 82(2)(ii).

It was also held that publication by all three modes namely (i) public reading in some conspicuous place of the town/village in such person ordinarily resides; (ii) affixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under Section 82(2) CrPC. It was held that the failure to comply with all the three modes of publication is to be considered invalid publication, according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.

It was further held that the three clauses (a), (b) and (c) of Section 82(2)(i) CrPC are conjunctive and not disjunctive. It was held that the factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-Section (2) is optional; it is not an alternative to clause (i). It was held that the latter clause is mandatory.

It was held that prior to the publication under Section 82(2)(i) CrPC, the police shall file an affidavit along with the photographs of the affixation of proclamation on the conspicuous part of the resident of the accused. It was directed that the police officer shall fill and submit performa in the format of Annexure C (as per judgment) before the court at the stage of seeking proclamation.

 

Guidelines for Enhancing the Efficiency in Execution of Proclamations

It was also directed that execution of Section 82/83 CrPC processes to be done by an officer not below the rank of S.I., since it is now a cognizable offence, under 174A IPC – Since abscondance and declaration as a Proclaimed Person/Offender has now become a cognizable and non-bailable offence, it is imperative that the execution of Sections 82 and 83 CrPC is done by an officer not below the rank of SubInspector. It was directed that the names, addresses and pictures of the Proclaimed Persons/Offenders be made public on different government websites i.e. Delhi Police, NCRB, CBI and other States Police. It was directed that the data of the Proclaimed Persons/Offenders in cases involving the Delhi Police, as is already available on ZIPNET, should be made accessible to the public. It was also directed that details of Proclaimed Persons/Offenders be also published on the website of the District Courts.

It was held that steps should be initiated for impounding or revocation of passport of the Proclaimed Person/Offender. It was held that in the absence of impounding or revocation of passports, the Proclaimed Person/Offender would be at liberty to travel freely in international jurisdictions. It was observed that taking expeditious steps in this regard shall be a key step in curtailing scope for international movements of Proclaimed Person/Offender.

It was held that the Court, after declaring the person as a Proclaimed Person/Offender, shall direct the Police to trace and identify the movable and immovable properties of the Proclaimed Person/Offender and file the status report with respect to the assets of the Proclaimed Person/Offender. It was directed that the Court shall thereafter proceed to attach the movable and immovable properties of the Proclaimed Person/Offender in accordance with the law.

It was held that after the declaration of a person as a Proclaimed Person/Offender, the Police is required to trace the Proclaimed Person/Offender and arrest him. It was directed by the HC that the Court declaring a person as a Proclaimed Person/Offender shall direct the Police to take all necessary action for tracing the Proclaimed Person/Offender and file the Status Report with respect to the action taken by the Police.

It was held that in all cases in which an accused is absconding, except those of exceedingly trivial or petty nature or where special circumstances exist which make the procedure unnecessary or undesirable, the Court may consider recording evidence against the absconded offender under section 299 CrPC. It was further held that in order to render evidence recorded under section 299 CrPC admissible at future trial, it must be proved and put on record that the offender has absconded and that there is no immediate prospect of arresting him.

All the Courts below were directed by the Delhi HC not to close the matter after declaring a person as a Proclaimed Person/Offender.  Rather, it was directed that the Concerned Courts shall direct the police to file the Status Report with respect to the efforts made to trace the Proclaimed Persons/Offenders; efforts made to trace or attach their movable/ immovable assets/properties and their prosecution in accordance with law. It was directed that the concerned Courts shall monitor the action taken by the Police and shall issue such fresh directions as may be considered necessary. It was also directed that the Court may, in appropriate cases, record the evidence of the witnesses under Section 299 CrPC.

The Delhi HC further held that in cases where some of the accused are absconding and some are facing trial in the Court the evidence should first be produced to prove that these persons are absconding and that there was no immediate prospect of arresting them. It was held that the evidence of the witnesses should thereafter be recorded in the case against those present. It was held that such evidence would be relevant against the absconders under section 299 CrPC, according to which on the arrest of the absconding accused, the deposition of the witnesses recorded in his absence may be given in evidence against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay or inconvenience which, under the circumstances of the case would be unreasonable. It was also held that the last ground can easily be cited where a large number of prosecution witnesses have been examined in the absence of the absconding accused.

With the aforesaid directions and observations, dealing comprehensively with Sec 82/ 83 Cr.P.C. proceedings, the petitions were disposed of by the HC.