Section 82 CrPC and Proclaimed Offenders

This post highlights what seems to be an anomaly in the procedure under Section 82 of the Criminal Procedure Code 1973 [Cr.P.C.] for compelling the appearance of persons before court. But before coming to the issue itself, its necessary to explain the general scheme of securing the attendance of persons under the Code.

Summons, Warrants and their Compliance

How does the court secure the presence of persons before it? Chapter VI of the Cr.P.C. explains this procedure in detail, telling us that there are either (a) summons or (b) warrants of arrest, that may be issued by a Court to ensure a person is present before it. Although the Code does not provide for a distinction, in practice two kinds of warrants may be issued, (i) bailable warrants and (ii) non-bailable warrants. The Supreme Court in Inder Mohan Goswami v. State of Uttaranchal [(2007) 12 SCC 1] provided some guidelines on how this discretion vested with a court may be exercised.

If summons were sent to X and she failed to comply without tendering any explanation, a warrant may be issued for her arrest [See, Section 87 Cr.P.C., which enables a warrant to be issued even where summons have not been sent]. But what happens when despite a warrant being issued, a person fails to appear before the Court? If the court has reason to believe that the person is deliberately avoiding the warrant, Section 82(1) empowers the court to publish written proclamations [in accordance with Section 82(2)] requiring her to appear before court on a specified place and time. But what if, despite the proclamation, the person fails to appear?

Of Proclaimed Persons and Proclaimed Offenders

Section 82(4) was inserted in 2006 to state that failure to appear after a proclamation entitles a court to pronounce the person a "Proclaimed Offender" and make a declaration to that effect. Importantly though, 82(4) is limited to proclamations in respect of persons accused of offences punishable under Sections 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code. The consequences of a proclamation are twofold. One, a proclamation triggers Section 83 Cr.P.C., enabling a court to attach any property belonging to the proclaimed person which may be sold upon continued absence. Two, Section 174-A of the IPC (also inserted in 2006 by the same amending statute) makes it an offence to not appear following proclamations under Section 82 Cr.P.C. In 174-A IPC a distinction was made: disobeying a Section 82(1) proclamation was punishable with imprisonment upto 3 years or fine or both, but where a declaration under Section 82(4) was made a person could be punished with imprisonment upto 7 years with a mandatory fine. 

The History behind the Text

The notion of a Proclaimed Offender as it exists today did not always find a place in the Code. in the 1872 Code, there was no mention of a Proclaimed Offender. It was in Section 45 of the 1882 Code that the words were first found, only in respect of the duties of village officers to make a report. In 1894 an explanation clause was added to Section 45 thereby expanding the definition of Proclaimed Offender. This was the first instance when the list of sections currently found in Section 82(4) found a place in the Code. The 1898 Code retained the provisions of Section 45 with respect to Proclaimed Offenders in its amended form, which today is provisions of Section 40 of the Cr.P.C. 1973.

Why was the definition of Proclaimed Offender expanded in 1894? The clause expanding the definition was in fact one in a set of identical clauses inserted that to iron out jurisdictional issues which were faced by the Crown in prosecutions of certain offences. This is clear by reading the full clause:

"the expression proclaimed offender includes any person proclaimed as an offender by any court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable with under any of the following sections of the Indian Penal Code, namely, 302, 304, 364, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 (both inclusive)"

Through history, we understand why it was necessary to amend the law in 1894 to insert the clause with this specific list of sections. Since the Cr.P.C. does not extend to all parts of India, it made sense to retain it post independence. But why was this list of sections specifically inserted in Section 82? For that, I found no answer. Although the proposal was seemingly made in the Criminal Procedure Code (Amendment) Bill of 1994 and included in a questionnaire prepared by the Law Commission, there is no discussion in the Report. These offences cannot be considered exhaustive of the set of grave offences under the IPC to argue that they merit a separate class. All facts seem to suggest that this list of offences is rather arbitrarily placed under Section 82(4) Cr.P.C.

Dealing with the Current Position
For reasons we cannot gather, Section 82 today creates two separate classes of proclamations: those for persons accused of offences specified under Section 82(4), and all other proclamations. This is supplemented by Section 174-A IPC, which reiterates that a higher punishment may be inflicted upon those declared Proclaimed Offenders under 82(4). There is no such declaration for disobeying the other proclamations issued under Section 82(1), which brings us to the issue at hand. Can persons other than those accused of offences listed under Section 82(4) be declared Proclaimed Offenders? The absence of any declarations outside of Section 82(4) was considered a problem by the Punjab & Haryana High Court, and in a lengthy decision [Deeksha Puri v. State of Haryana, Crl.M.C. 359/2012 decided on 16.10.2012] it concluded that the apparent labeling lacuna must be resolved by calling any persons disobeying a proclamation a Proclaimed Offender.

I disagree with the High Court on two points. First, the absence of a declaration for 82(1) Cr.P.C. does not create any real problem as is evident from the declaration mechanism being entirely absent from the Code until 2006. Second, even if there is a problem of labeling, the High Court arrived at solution by effectively rewriting the plain text of the statute which is contrary to settled principles of interpretation. Rather than proactively amend the law, its better to stick to the plain text and follow the procedure which follows, i.e. restrict declarations of Proclaimed Offender to only those cases outlined under Section 82(4). As I often conclude though, an amendment would indeed be ideal.

My thanks to Mr. Ankit Agarwal, Advocate and Ms. Shweta V., undergraduate student at NUALS, Kochi for their inputs and assistance