2021 (6) TMI 1194 - HC - Indian Laws

Faulty service of notices and wrong address in CrPC proclamation proceedings, proclaimed offender declaration set aside; 174A risk flagged

Declaration of the accused as proclaimed offenders under the CrPC was held unsustainable because the factum of service was not established: the ... Petitioners declared as Proclaimed Offenders without following due process of law - failure to satisfy the factum of service of notice upon the petitioner as respondent no. 2 was unable to furnish the complete address of the petitioner and the notices were not sent to the petitioner at the correct address - serious offence under Section 174A IPC - HELD THAT:- The law with respect to the declaration of a person as a Proclaimed Person/Offender is well settled. This Court has laid down the Guidelines to be followed by the Courts before declaring a person as a Proclaimed Person/ Offender. The Courts shall consider the Guidelines before declaring a person as a Proclaimed Person/Offender - The Court, after declaring the person as a Proclaimed Person/Offender, shall direct the Police to trace and identify the movable and immovable properties of the Proclaimed Person/Offender and file the status report with respect to the assets of the Proclaimed Person/Offender. The Court shall thereafter proceed to attach the movable and immovable properties of the Proclaimed Person/Offender in accordance with the law. All the Courts below are directed not to close the matter after declaring a person as a Proclaimed Person/Offender. Rather, the Courts shall direct the police to file the Status Report with respect to the efforts made to trace the Proclaimed Persons/Offenders; efforts made to trace or attach their movable/ immovable assets/properties and their prosecution in accordance with law. The concerned Courts shall monitor the action taken by the Police and shall issue such fresh directions as may be considered necessary. The Court may, in appropriate cases, record the evidence of the witnesses under Section 299 CrPC. In Hussain v. Union of India [2017 (3) TMI 1392 - SUPREME COURT], the Supreme Court noted that the trials were getting delayed on account of absconding of one or the other accused during the trial. The Supreme Court noted Section 339-B of the Code of Criminal Procedure, 1898 of Bangladesh which permitted trial in absentia. The Supreme Court recommended similar amendment of CrPC to reduce the delay due to the absconding of the accused during the trial. This Court appreciates the exemplary work done by the Internal Committees of CBI as well as Delhi Police in terms of the directions issued by this Court on 07th January, 2021. Petiiton disposed off. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether orders declaring persons as 'Proclaimed Offenders' can stand where proclamation proceedings were initiated and concluded without due process, including absence of proper service/verification and judicial satisfaction regarding absconding or concealment. (ii) Whether the Court should, and can, issue binding directions/guidelines to prevent routine or mechanical issuance of processes under Sections 82 and 83 CrPC, having regard to their impact on personal liberty and criminal liability under Section 174A IPC. (iii) What procedural safeguards and institutional follow-up measures must be mandated to ensure (a) lawful declaration as Proclaimed Person/Offender, and (b) effective steps after such declaration, including tracing/arrest, attachment of property, and prosecution under Sections 174A/229A IPC, as well as monitoring/reporting by courts and investigating agencies. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Validity of proclamation and 'Proclaimed Offender' declarations passed without due process Legal framework (as discussed by the Court): The Court considered the serious consequences of declaration as a Proclaimed Offender, including exposure to a substantive offence under Section 174A IPC and the impact on life and liberty under Article 21. The Court examined the statutory scheme of Chapter VI CrPC, emphasizing that proclamation under Section 82 presupposes a warrant and a judicial finding that the person has absconded or is concealing himself so the warrant cannot be executed. Interpretation and reasoning: The Court found that the persons concerned were declared Proclaimed Offenders without following due process: in one instance the court did not satisfy itself about service and notices were sent to incorrect/ incomplete addresses; in another instance no summons/warrants were ever served. The Court treated such defects as fatal because the statutory preconditions to proclamation and declaration were not satisfied. Conclusion: The Court quashed the impugned orders declaring the persons as 'Proclaimed Offenders' because the declaration was made without proper service and without lawful satisfaction regarding absconding/concealment. Issue (ii): Power and necessity to frame guidelines governing Sections 82-83 CrPC proceedings Legal framework (as discussed by the Court): The Court expressly invoked its inherent and supervisory jurisdiction to issue directions: Section 482 CrPC (to secure ends of justice), Section 483 CrPC (continuous superintendence to ensure proper disposal), and Article 227 of the Constitution (superintendence over subordinate courts). The Court linked the exercise of power to preventing abuse of process and miscarriage of justice. Interpretation and reasoning: The Court held that proclamation/attachment measures were being used routinely, without adequate procedural compliance, despite the grave consequences that follow, including criminal liability under Section 174A IPC. The Court reasoned that safeguards are required both to protect individuals from wrongful proclamation and to ensure that proclaimed persons/offenders do not indefinitely delay trials. It therefore considered it necessary to standardize process requirements and enforcement follow-up. Conclusion: The Court held it necessary and within its jurisdiction to lay down detailed guidelines governing issuance of warrants, proclamations, and attachments, and to direct institutional mechanisms for implementation and monitoring. Issue (iii): Mandatory safeguards before and after declaration as Proclaimed Person/Offender; monitoring, enforcement, and accountability Legal framework (as discussed by the Court): The Court examined the preconditions and publication requirements of Section 82 CrPC (including the 30-day minimum and mandatory modes of publication), the attachment power under Section 83 CrPC (reasons to be recorded; attachment after proclamation, with limited simultaneous-attachment exceptions), and the penal consequences under Sections 174A and 229A IPC. It also addressed recording evidence under Section 299 CrPC in appropriate circumstances. Interpretation and reasoning: The Court treated declaration as Proclaimed Person/Offender as a liberty-impacting step that must not be issued mechanically. It emphasized that proclamation requires: prior issuance of warrant; material showing deliberate absconding/concealment (mere non-availability being insufficient); and strict compliance with the prescribed publication modes. The Court further held that the justice process cannot end with a declaration; rather, the State must make reasonable efforts to arrest, trace assets, attach property, and prosecute under Section 174A IPC, and trial courts must monitor these steps through status reports. Conclusions and operative directions (core holdings applied to the final decision): (a) Pre-declaration procedural safeguards: The Court directed detailed safeguards governing (i) warrants at investigation and trial stages, (ii) verification of addresses and collection of identification/contact particulars, (iii) affidavit/status-report based scrutiny by courts before proclamation, (iv) prohibition on simultaneous issuance of warrant and proclamation, (v) mandatory compliance with all three publication modes under Section 82(2)(i) and treatment of newspaper publication as optional and not a substitute, and (vi) use of photographs/videography and structured proformas to support service/publication claims. (b) Post-declaration obligations and case management: The Court directed that after declaring a person as Proclaimed Person/Offender, courts must not consign the file; they must require police status reports on (i) efforts to trace/arrest, (ii) efforts to trace and attach movable/immovable assets, and (iii) prosecution steps under Sections 174A and, where bail conditions are violated, Section 229A IPC. Courts may record evidence under Section 299 CrPC in appropriate cases, with reasons and requisite proof of absconding and lack of immediate prospect of arrest. (c) Timeline for prosecution under Section 174A IPC: The Court held that if the proclaimed person/offender does not surrender or is not traced within six months of being declared, prosecution under Section 174A IPC should be initiated; where bail bond conditions are violated by non-appearance, prosecution under Section 229A IPC should also be initiated. (d) Compliance reporting and judicial accountability: The Court directed all subordinate courts to send quarterly compliance reports to the Registrar General containing specified metrics (declarations, arrests, attachments, prosecutions under Sections 174A/229A, and evidence recorded under Section 299). Non-compliance was directed to be placed before the ACR Committee of the judicial officer. (e) Institutional enforcement mechanisms: The Court directed investigating agencies to create a Special Cell for tracing proclaimed persons/offenders, attaching assets, and pursuing prosecution, within a fixed timeframe. The Court also constituted a High-Powered Committee to supervise phased implementation of the guidelines, including periodic meetings and quarterly status reporting by investigating agencies to the Committee.