Wednesday, August 1, 2018

Update: Delhi High Court Decision on Section 82 and Proclaimed Offenders

A couple of years ago, this Blog discussed the legal position on Section 82(4) Cr.P.C. and the legal issue of how do we interpret the term "proclaimed offenders" used therein. The earlier post described the problem thus: 

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. 
... 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?

Further, the post mentioned how the Punjab and Haryana High Court had considered the issue in a 2012 decision titled Deeksha Puri v. State of Haryana, where it concluded that persons other than those mentioned under Section 82(4) were also proclaimed offenders. In the 2016 post, it was argued that this conclusion was incorrect, not least because of it being completely unsupported by the text.

Yesterday, i.e. on July 31, 2018, a Single Judge Bench of the Delhi High Court in Sanjay Bhandari v. State [Crl Revision Petition No. 223 of 2018] specifically disagreed with the Punjab and Haryana High Court, and concluded that "Proclaimed Offender" is a term of art, that can only be used in respect of the categories of offences covered by Section 82(4), Cr.P.C. Persons who disobey proclamation notices in cases involving other offences are "Proclaimed Persons". For such persons, law enforcement cannot resort to the aggravated punishment clauses of Section 174-A of the Indian Penal Code. As an aside, the other question posed in the earlier blog post - why is this list of offences used in Section 82(4) - remains unanswered. The Delhi High Court in Sanjay Bhandari only engages with that list of offences to assert that it contains "serious offences" [Para 14], without telling us why these serious offences are part of the list, which excludes Section 376 IPC that punishes rape.

With this conflict between different High Courts, will the matter reach the Supreme Court, or can the Parliament be suggested (wisely) to intervene and clarify the text? 

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