Sunday, November 27, 2022

Delhi High Court puts out guidelines on proclaiming an offender

The Delhi Court has issued guidelines on declaring an absconding accused as a proclaimed offender. It observed that declaring a person as a proclaimed offender affects his life and liberty under Article 21 of the Constitution and a due process of law must be followed in this regard.

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The Delhi High Court recently laid down comprehensive guidelines on how to go about declaring persons absconding from the law as “proclaimed offenders” under Section 82 of the Code of Criminal Procedure (CrPC). A single bench of Justice JR Midha laid down the guidelines to be followed by the courts before declaring a person as a “proclaimed offender” and the follow-up action needed to be taken by the law enforcement agencies in this regard.

The Court also issued a detailed mechanism for the early apprehension of “proclaimed offenders”, including setting up of a “Digital Surveillance System” by the Delhi Police, with access to specific government departments for tracking such “proclaimed offenders”.

The Court was prompted to issue the guidelines while dealing with two petitions wherein it was alleged that the petitioners were declared “proclaimed offenders” without following due procedure. Upon finding that they were not served proper notice, the Court allowed their pleas and quashed the orders declaring them as “proclaimed offenders”.

The Court was of the view that declaring a person as a “proclaimed offender” led to a serious offence under Section 174A IPC, which was punishable for a period of upto three or seven years. It affected the life and liberty of a person under Article 21 of the Constitution of India and it was necessary to ensure that the process under Sections 82 and 83 CrPC was not issued in a routine manner and the due process of law was followed. The second important aspect was that once a person had been declared as “proclaimed offender”, it was the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174A IPC.

The 185-page judgement also directed the digital surveillance team of the Delhi Police and the Central Bureau of Investigation to keep a tab on social media websites, namely, Facebook and Twitter to track those declared proclaimed offenders.

“Once given access, there are softwares which can act as web crawlers and search out the proclaimed persons/offenders out of large databases. The threat perception from these proclaimed persons/offenders roaming around in Delhi fearlessly is immensely grave,” the judgment read.

The guidelines are as follows:

Guidelines for warrants of arrest at trial stage: At the stage of trial, the accused is normally on bail. 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.

Guidelines for verification of address(es) of the accused by the police at the stage of summons/warrants/arrest surrender: The investigating officer shall ensure the verification of the address of the accused before or after his arrest or while seeking his arrest warrants from the court. The investigating officer shall record in the case diary the name of at least two respectable persons of the locality of the accused with their contact details like addresses and telephone numbers who ratify that the address of the accused mentioned in the arrest memo or the applications for seeking warrants of arrest of the accused is correct and complete and it belongs to the accused. At the time of arrest or soon thereafter, the police shall collect the photograph, mobile and landline number, email id, all social networking accounts like Facebook, Instagram, LinkedIn, Twitter and IT communication tools and copies of at least two documents, namely Aadhaar card, passport, PAN card, bank account, credit card, ration card, electricity bill, landline telephone bill, voter ID card and driving licence from the accused.

Guidelines for cases instituted on private criminal complaints: The complainant shall share all available addresses of the accused known to him i.e. current/temporary/permanent and workplace. The complainant shall file documentary proof of the address of the accused, if available.

In complaint cases, the accused shall furnish name, address, relation and other details of his three relatives for future communication. However, service of summons to those addresses may not be treated as due service under Section 64 CrPC.

Guidelines  for conditions to be imposed at the time of granting bail: At the time of granting bail, 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 Aadhaar, PAN card, driving license, voter ID, ration card, etc.

The courts while granting bail can impose the following conditions to en­sure the presence of accused in the court at the time of hearing:

(i) The accused must furnish his mobile number along with the undertaking that he/she will always keep his mobile on active mode and share his live location with the investigating officer as and when requested/ordered.

(ii) The accused must make a video call to the investigating officer periodically.

(iii) The accused must give all available addresses, including permanent address, current address or any other address where he may reside along with the proof thereof.

(iv) The accused must give an undertaking that he/she will notify the investigating officer in case of change of address or mobile number.

(v) The accused must furnish a government ID.

(vi) The accused must furnish PAN card details along with his income tax ward.

Guidelines for issuance of proclamation: The police has to submit a report before the court that the person against whom the arrest warrant was issued has absconded or is concealing himself. The concealment has to be deliberate for the purpose of avoiding arrest. The mere fact that the police could not find the accused, is not enough.

Guidelines for enhancing the efficiency in execution of proclamations: The modified arrest memo shall also have a mandatory column for affixation of front and side pose photograph of the arrestee. Inclusion of photograph would not only bring credibility to the arrest memo but would also come handy in the future proclamation proceedings, if any. Inclusion of all other particulars of information technology communication tools like email ids, Facebook accounts, LinkedIn accounts and Twitter accounts, etc. of the accused in the arrest memo is a must.

Guidelines for early apprehension of proclaimed offenders/proclaimed persons: A suggestion on possible details that could be voluntarily received from them at a suitable stage either during investigation or while attending court to the extent possible. These include:

(i) Good quality photographs from multiple axes.

(ii) Fingerprints recorded digitally.

(iii) Name, parentage, date of birth, native place and the last known address.

(iv) Copies of photo-identity documents like passport, EPIC card, proof of address, etc.

(v) Identification marks and general descriptors like height, prominent facial looks, etc.

(vi) Communication details like e-mail id, mobile number, landline number, etc.

(vii) Social Media account details, if any, of Facebook, WhatsApp, LinkedIn, Twitter, etc.

(viii) Details of close family members and social acquaintances.

(ix) Financial accounts details, such as bank accounts, PAN card number, etc.

Delhi Police shall put in place a Digital Surveillance System whereby it shall be given a “See only” access to all digital data of the various government departments to track proclaimed persons/offenders. Once given access, there are softwares which can as web crawlers search out the proclaimed persons/ offenders out of large databases. The details of the departments are as under: (i) all nationalised and private banks’ saving account holders data; (ii) all nationalised and private banks’ loan account holders’ data; (iii) all nationalised and private banks’ credit cards holders’ data; (iv) all PAN card holders’ data; (v) all MTNL/private landline holders’ data; (vi) all MTNL/private mobile holders’ data; (vii) All passport holders’ data; (viii) all government and private insurance holders’ data; (ix) all Aadhaar card holders’ data; (x) all voter cards holders’ data; (xi) transport department, driving licence and vehicle registration data; and (xii) Registrar of Death Registration data.

Also Read: Allahabad High Court directs UP DGP to file affidavit over serious allegations made against Police department

Section 82 of the CrPC states that the court of law may publish a written pro­clamation requiring a person to appear before it on a specific place and date if it has a reason to believe that the person against whom a warrant (arrest) was issued has been either absconding or concealing himself to prevent the warrant from being executed. Whenever an accused is not giving the appearance in court in the wake of issuing the bailable warrant, at that point, the court will issue non-bailable warrants against the individual/blamed under Section 70 for the CrPC.

Primates often have notions of fairness and sharing, with violations punished by exclusion or banishment from social groups. In human history, prior to agriculture, more nomadic cultures had systems of punishment for behaviour or resistance. With the development of agriculture, which led to more closely populated cities and cultures and behaviour to address fears of persons taking advantage of or causing harm to others, more formal systems of punishment for crimes developed, independently around the world, or based upon other cultures.

—By Shivam Sharma with India Legal News Service

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