Legal Remedies available to a Accused in case of Issuance of Proclamation of Proclaimed Offender: Lawyers Advice
Our Constitution does not permit anyone to be damned unprecedented without providing an opportunity to the concerned person. In the case of issuance of proclamation by the court of law, it is important that proper scrutiny of the material facts is undergone for establishing a proper legal procedure. In order to provide proper remedy to an accused having a proclamation issued against him, it is important to establish certain facts and substantial material before the court. Now under Section 81 of the Code of Criminal Procedure, if the court has a reason to believe that anyone against who there is a warrant for arrest is absconding or hiding himself in order to avoid execution of such warrant. Then in such an event, the court may under Section 82 of the Code of Criminal Procedure, publish a written proclamation summoning him to appear at a particular place and at a specified time. However, the same shall be not less than 30 days of publishing such proclamation.
In order to Publish a Proclamation, it is necessary that following conditions are met:
- Firstly, the person against such a proclamation is absconding or is himself and it is not possible to arrest him.
- Secondly, the person has a warrant issued against him and is evading the execution of such warrant.
Scheme given under Section 82 of the Code of Criminal Procedure is Necessary and not Mandatory in nature:-
It is noteworthy that the In Savita Ben Govind Bai Patel v. State of Gujarat, 2004 CriL L 3651, the Hon’ble Supreme Court made out that the scheme provided under Section 82 of the Code of Criminal Procedure is not mandatory in nature but something which is necessary. It was further elucidated that the before publishing any proclamation, the court should have a reason to believe that the person against whom warrant has been issued is absconding. Now, after being satisfied, the court should direct the concerned person to appear at a particular place (specified by the court) at a particular time which shall be not less than 30 days.
Issuance of the Non-Bailable Warrant is a Pre-Condition for the Subsistence of the Proclamation issued:-
One of the pre-requisites for issuance of proclamation is the issuance of a non-bailable warrant of arrest. Under the Section 73 of the Code of the Criminal Procedure, the Chief Judicial Magistrate or a magistrate of the first class may order a warrant to anyone within their local jurisdiction for his arrest. Now, under the clause (1) of the said section, there are few important points which are to be considered before issuing a non-bailable warrant:
- That the convict has escape,
- That the convict is a proclaimed offender, or
- That the accused has committed a non-bailable offence and is evading arrest.
It is imperative that the legal procedure is in consonance with the aforementioned conditions. That, is the person against whom the warrant has been issued falls in either of the three categories. In Sunil Kumar v State, 2002 Cri.L. J 1284, it was clearly stated that unless it is substantiated that a proper warrant had been issued under Section 73 of the Code of Criminal Procedure against the concerned accused and that the same is absconding, the procedure under Section 82 & 83 of the Code of Criminal Procedure (Cr.P.C) cannot be executed. Issuance of warrant by the magistrate is sine qua non for the issuance of proclamation. In the case of absence of any substantial material evidence in relation to issuance of warrant of arrest, ordering issuance of proclamation cannot be supported.
Simultaneous Issuance of a Warrant and Proclamation is Unlawful in nature:-
Now, it may be noted that issuance of proclamation alongside the warrant for arrest under the Section 82 of the Code of Criminal Procedure is purely unlawful in nature. It is an obligation upon that the magistrate to consider one or more reasons for the non-execution of warrant before the issuance of proclamation under Section 82 of the Code of Criminal Procedure. Furthermore, the non-bailable warrant issued should not only be based upon the ground that the accused is charged with a non-bailable offence. The concerned accused must also be eluding his arrest. thus, both the requisites are to be fulfilled before issuance of non-bailable warrant.
The Three-Step Approach and Personal Liberty of the Accused:-
The Hon’ble Court in Omvati v. State of U.P & Another, Criminal Appeal No. 141 of 2004, has discussed a three-step approach to issue a warrant. Firstly, a summon has to be issued against the accused. Now in the case, the accused does not reciprocate to the order, then a bailable warrant should be proceeded. After giving all sorts of remedies, if the court of law is fully satisfied regarding the attempts made by the accused to escape the proceedings, then it may issue a non- bailable warrant. Here, accused personal liberty is a paramount condition. Without proper execution of the three-steps, if the concerned accused is absconding, then the issuance proclamation under Section 82 of the Code of Criminal Procedure is not maintainable. As it has been said earlier that personal liberty of the accused is a paramount condition before the court, issuance of proclamation contravening the basic rights of life and personal liberty of the accused is illegal in nature. Therefore, it is important that the court records satisfaction that pre-conditions for the issuance of arrest warrant has been fulfilled and procedure relating to the law is properly executed.
Application for Anticipatory Bail and Furnishing of Bail and Surety Bond:-
Now in the case where it has been substantiated that someone is a proclaimed offender, the apex court in Yogendra Partap Singh v. State, Crl.REV.P. No. 645 of 2007, clearly made out that in cases his right to apply for an anticipatory bail is not taken away. Also, in Siddharam Satlingappa Mhetre v. State of Maharashtra, Criminal Appeal No. 2271 of 2010, the court of law while considering the broader principle of granting the bail made out that personal liberty of the accused is a precious thing and the same should not be permitted to be jeopardize by fake allegations. In Vivek Gaur v Naresh Kumar, dated: 02.01.2012, the Hon’ble Delhi High Court clearly held that a proclaimed offender may be granted the welfare of the normal bail. In Hardev Singh v. State of Punjab, CRM-M-25669 of 2018, the Hon’ble Apex Court made out that in case of a bailable offence, the declared proclaimed accused cannot be sent the prison if the same furnishes a bail and surety bond as per the order of the Trial Court.
The issued proclamation in respect of the accused needs to be scrutinized and considered carefully in order to execute a proper legal procedure. The liberty of the person concerned should be kept a paramount condition before issuing the warrant and also proclaiming the offender later. Consideration of the material facts and execution of proper steps with respect to issuance of warrant and further the proclamation is a sine qua non for protecting the personal liberty of the accused.
Authored By: Adv. Anant Sharma & Aniket Pandey