'Proclaimed Offender' Declaration Under Section 82(4) CrPC Cannot Be Made Against Person Accused Of Sections 406, 420 IPC : Delhi High Court

The Delhi High Court has held that a person accused of offences under Section 406(criminal breach of trust), 420(cheating) and 120B(criminal conspiracy) under the Indian Penal Code(IPC) cannot be declared as a 'proclaimed offender' under Section 82(4) of the Code of Criminal Procedure.

The Court held that such a declaration can be made only against persons accused of the offences specified under Section 82(4), which are Sections 302, 304, 364,367,382,392,393,394,395,396,397,398,399,400,402,436,449,459 or 460 of IPC.

Since Sections 406, 420 and 120B of the IPC are not mentioned in Section 82(4), the High Court quashed the order issued by the trial court for issuing process against the petitioner under Section 82 in the case Arun Kumar Parihar v State(Govt NCTD).

To reach this conclusion, a single bench of Justice Anu Malhotra referred to the precedents in Manoj Tandon Vs. State(Delhi HC decision in Crl.M.C.1961/2020,dated 25.11.2020), Sanjay Bhandari vs. State (Delhi HC decision in Crl.Rev.Pet.No.223/2018, dated 31.07.2018) and Rishabh Sethi vs. State of Rajasthan and Ors(Rajasthan HC decision in Petition No.5767/2017).

In Sanjay Bhandari, a single bench of Justice Sanjeev Sachdeva had held that the declaration under Section 82(4) can be made only with respect to the offences specified in the said section.

What does Section 82 CrPC say?

Section 82(1) empowers a court to publish a written proclamation against a person, 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. This proclamation is issued if the court has reason to believe that a person against whom a warrant has been issued by it, has absconded or is concealing himself so that such warrant cannot be executed. Further, it may be noticed that proclamation can be issued not only against a person, against whom a warrant has been issued and who has absconded but also against a person who is concealing himself so that such warrant cannot be executed.

Section 82(2) stipulates the manner and procedure of such proclamation. Section 83(3) stipulates that 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.

Section 82(4) and 82(5) were inserted by the 2005 amendment of the Code w.e.f. 23.06.2006. Section 82(4) stipulates that a person, in respect of whom a proclamation has been published under section 82(1), if he fails to appear at the specified place and time required by the proclamation and if he is accused of offences mentioned in Section 82(4), the court may pronounce him as a proclaimed offender, after making such inquiry as it things fit. Section 82(5) stipulates that the provisions of Section 82(2) and (3) shall apply to a declaration made by the court under section 82(4) as they apply to a proclamation made under 82(1).

Other than section 82(4), Section 82 does not stipulate the consequences of non-compliance of the proclamation issued under it. 82(4) stipulates that where the proclaimed person fails to appear at the specified place and time, the court may pronounce him as a proclaimed offender. This pronouncement as a proclaimed offender can only be issued if he is accused of the offences stipulated in 82(4) and that also, only after the court has made such inquiry as it deems fit. There is no provision, other than section 82(4) in the Cr.P.C., under which the court can pronounce a person as a proclaimed offender.

In Sanjay Bhandari case, the Delhi High Court had rejected the argument of the prosecution that every person in respect of whom a proclamation has been published is deemed to be a proclaimed offender irrespective of the provisions of Section 82(4). If such an argument is accepted, the High Court held, hen the consequence would be that a person qua whom a proclamation has been published and is not accused of any of the offences mentioned in Section 82(4), would be deemed so, without the safeguard of an inquiry stipulated in section 82(4). This can certainly not be the intention of the legislature, the Court observed.

"The offence enumerated in section 82(4) are serious in nature. It could not be the intention of the legislature that qua a person who is accused of offences that are serious in nature, the safe guard of an inquiry is stipulated and no such safeguard is stipulated qua a person who is accused of offences that may not be so serious", the High Court said in Sanjay Bhandari case.

Sanjay Bhandari verdict further said:

"The intention of the legislature cannot be that such adverse consequences would automatically get attracted to a person qua whom a proclamation has been published and is accused of offences of a less serious nature but for a person who is accused of serious offences enumerated in section 82(4), they would get attracted only after the safeguard stipulated in section 82(4) has been followed".

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