Legal provisions regarding proclamation for person absconding under section 82 of the Code of Criminal Procedure, 1973.
The ordinary process for compelling appearance is in the first instance to issue summons under Section 61. When summons so issued cannot be served it is the duty of the court to issue a warrant. When warrant also cannot be executed the Court may issue a proclamation under Section 82 or property of the person wanted may be attached under Section 83 of the Code while steps are being taken to enforce the appearance of the accused under Sections 82 and 83, the Court may, if the absconder is an accused person, proceed under Section 299 of the Code by recording of evidence in absence of accused. Section 82 of the Code of Criminal Procedure provides that:
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(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:
(i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;
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(c) A copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this Section have been complied with and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is in respect of a period accused of an offence punishable under Sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.
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(5) The provisions of sub-section (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).
Even in summons cases and against witness, a proclamation for person absconding may be issued. Absconding does not mean absence on one day, but it means remaining out for at least some days.
To be an absconder in the eye of law it is not essential that a person should have run away from his house but it is sufficient if accused hides himself to evade the process of law.
In Rohit Kumar alias Raju v. State of N.C.T., Delhi and Another, it was observed that the sine qua non for an action under Section 82 of Cr. PC. is the prior issuance of warrant of arrest by the Court?
There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant cannot be issued. An attachment warrant can be issued only after the issuance of proclamation.
The expression ‘reason to believe’ occurring in Section 82 suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him.
The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. It’s etymological and its ordinary sense is to be hide oneself. Further, under Section 82 the Court issuing proclamation must record its satisfaction that accused had ‘absconded’ or ‘concealed himself’.
The three clauses (a), (b) and (c) of sub-section (2) (i) of Section 82, Cr. PC. are conjunctive and not disjunctive. 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). The latter clause is mandatory.
The Magistrate must be satisfied that the accused was absconding or concealing himself for the purpose of avoiding the service of the warrant. The mere fact that the sub-inspector could not find the accused is not enough under this Section. What is required is the evidence of the effect that he had known that he was wanted and was avoiding arrest.
Under Section 82 of the Code, the Magistrate issuing proclamation must record his satisfaction that the accused had absconded or concealed himself. A person who had gone abroad before the issue of the warrant of arrest cannot be said to be absconding or concealing. However, even though the accused has left India before proclamation, if he continues to remain outside India with a view to defeat or delay the execution of the warrant, he has to be taken to be absconding person.
The term abscond does not necessarily imply change of place. It means ‘to hide oneself’ and it matters not whether a person departs from his place or remains in it, if he conceals himself. In either case, he is said to abscond. If a person having concealed himself before the issue of proclamation of absconding by the magistrate, continues to do so after it is issued, he is said to abscond.
The proclamation of absconding shall not be issued whenever a warrant fails of its effect. Before issuing a proclamation, the officer not to serve the warrant must be examined as to the measures adopted by him to serve it.
If, on his evidence or in any other manner, the magistrate is satisfied that the accused is absconding or concealing, then and then only the processes of proclamation may be issued.
Process under Section 82 of the Code cannot be issued unless it is established that a warrant had already been issued against the person wanted and that person was absconding. The previous issue of a warrant against the person whose attendance is required before the Court is a necessary condition.
Simultaneous issue of both the processes, namely, warrant of arrest and proclamation is ex facie contradictory, since it is only after the first that the second can be issued where the concerned person has absconded or is hiding.
A proclamation under Section 82 must mention the time within which and the place at which the absconder should present himself to save the sale of his property. An omission to mention the time and place would render the proclamation a nullity. The proclamation shall also be ineffective if a period lesser than that provided by the Section is mentioned.
The Code of Criminal Procedure does not apply to the proceedings of contempt. Hence, the provisions of Section 82 would also not be available to securing the presence of a person who is alleged to have committed contempt.
The failure to comply with all the three modes of publication is considered invalid publication, according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
The most important part of the publication is the publishing of the proclamation in the accused’s place of residence, and it is from the date of such publication that the 30 days should be counted.
An accused person against whom a proclamation has been issued must, until he has surrendered, be regarded as in contempt, and the Court will not entertain any application on his behalf.