The Delhi High Court recently has 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.
The directions also state detailed mechanism for early apprehension of such proclaimed offenders including a direction that a Digital Surveillance System shall be placed by the Delhi Police by giving access to specific departments for tracking such proclaimed offenders.
As per the status report of Delhi Police, 18,541 persons have been declared Proclaimed persons out of which 6000 Proclaimed offenders were accused of heinous crimes. As regards to CBI, 820 persons were declared as Proclaimed persons as on 31st December, 2014 out of which 184 Proclaimed offenders and 193 absconders were arrested.
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 “proclaimed offenders.”
This Court is of the view that declaring a person as a Proclaimed Offender leads to a serious offence under Section 174A IPC which is punishable for a period upto 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law is followed. The second important aspect is that once a person has been declared as a Proclaimed offender, it is 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.
“This Court considers it necessary to issue directions in this regard in exercise of inherent powers under Section 482 CrPC read with Section 483 CrPC and Article 227 of the Constitution. Section 482 of the Code of Criminal Procedure empowers this Court to make such orders as may be necessary to secure the ends of justice in exercise of the inherent powers. Section 483 of the Code of Criminal Procedure, 1973 casts a duty upon every High Court to exercise its continuous superintendence over the Trial Courts to ensure that there is an expeditious and proper disposal of cases. Article 227 of the Constitution also confers on this Court the power of superintendence over all subordinate courts in relation to which it exercises jurisdiction. The paramount consideration behind vesting such wide power of superintendence in this Court is to keep the path of justice clear of obstructions which might impede it. It is the salutary duty of this Court to prevent the abuse of the process, miscarriage of justice and to correct the irregularities in the judicial process,” said the Court.
Guidelines for Warrants of Arrest at Investigation Stage- 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. Before applying for warrant, the Investigating Officer shall show the efforts made to arrest the accused. No warrant shall be issued against an accused merely on the ground that accused is not available to the Investigating Officer/Police for joining the investigation.
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 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 Aadhar Card, Passport, PAN Card, Bank Account, Credit card, Ration card, Electricity bill, Landline telephone bill, Voter I.D. Card, 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, 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 grant of 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 Aadhar, 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 to 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 to make a video call to the Investigating Officer periodically. (iii) The Accused to give all available addresses including permanent, current address or any other address where he may reside along with the proof thereof. (iv) The Accused to give an undertaking that he/she will notify the Investigating Officer in case of change of address or mobile number. (v) The accused to furnish a Government ID. (vi) The accused to 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 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 I.Ds, Facebook accounts, LinkedIn in accounts and Twitter accounts etc. of the accused in the Arrest Memo
Guidelines for Early apprehension of Proclaimed Offenders/Proclaimed Persons- There is a need for accurate recording of certain identifier details of accused and suspects, especially in crimes of higher gravity, either when they are joining investigation or attending courts for enabling effective tracing in case they become absconders or are declared Proclaimed Persons/Offenders at a later point in time.
Delhi Police as well as CBI shall create a Special Cell for tracing out the Proclaimed Persons/Offenders; for attaching their movable/immovable properties and for their prosecution. Delhi Police as well as CBI are at liberty to have a consolidated Special Cell. This Special Cell be created within a period of four weeks.
Read the full judgment here;JRM28062021CRLMM53282013_193049