Being In Touch With Investigating Agencies Negates ‘Absconding’ Tag: Delhi High Court Sets Aside Proclamation Order Against Australian National

The Delhi High Court has held that an individual who remains in consistent communication with the investigating agency and complies with its directions cannot ordinarily be treated as absconding or concealing himself from the process of law. Setting aside an order declaring the petitioner a proclaimed person under Section 82 of the Code of Criminal Procedure (corresponding to Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023), court emphasised the importance of procedural fairness and effective communication in criminal proceedings.

A bench of Justice Swarana Kanta Sharma observed that the conduct of the investigating agency must be examined alongside that of the accused.

“A person who is in continuous communication with the investigating agency and is responding to its directions cannot, in the ordinary course, be said to be absconding or concealing himself from the process of law. Moreover, the failure of the investigating agency to inform the petitioner about the proclamation proceedings, despite being in regular contact with him, assumes significance and lends credence to the petitioner’s contention that he was kept unaware of the same”, court ruled.

The case arose from an FIR registered under Sections 376 and 506 of the Indian Penal Code [corresponding to Sections 63 (rape) and 351 (criminal intimidation), respectively]. The petitioner, who had relocated to Australia in 2018, challenged the order of the Chief Metropolitan Magistrate at Saket Courts declaring him a proclaimed person. He argued that his foreign residence was known to the authorities and that he had never attempted to evade the investigation.

The high court took note of the petitioner’s consistent engagement with the investigating agency. It found that he had responded to notices issued under Section 160 CrPC (corresponding to Section 179, BNSS), provided documents when required, and expressed willingness to cooperate with the investigation. Importantly, court observed that such communication continued even after the initiation of proclamation proceedings, thereby undermining the claim that he was absconding.

“….In the said writ petition, the petitioner had specifically disclosed his residential address in Australia in the memo of parties. Not only this, the concerned police officials, who were then investigating the matter and at whose instance the proclamation proceedings were being initiated and carried forward, were themselves arrayed as respondents in the said writ petition and were, thus, fully aware of the petitioner's residence abroad. Even otherwise, in the status report filed before this court in the present proceedings, the State has fairly acknowledged that the petitioner had left India in March 2018 and was residing in Australia. This clearly demonstrates that the investigating agency was conscious of the petitioner's location outside India at the relevant time”, court pointed out.

Court also found serious procedural lapses on the part of the investigating agency. Despite being aware that the petitioner was residing abroad, no attempt was made to serve him through legally recognised international channels. There was no evidence to show that service was attempted through the Ministry of External Affairs or any other appropriate mechanism for persons located outside India.

“….it is clear from record that despite having knowledge of the petitioner‟s residence abroad, no effort was made by the investigating agency to serve summons or warrants upon him at his Australian address. There is nothing on record also to show that any steps were taken to effect service through the Ministry of External Affairs or through any other legally recognized mode for service upon a person residing outside India. Equally, there is no material to indicate that the learned CMM was apprised of the fact that the address of the petitioner, who was a permanent resident of Australia and was not residing at the address in Delhi where service was purportedly effected, was available with the police officials since the same had been mentioned in the writ petition filed before this Court itself”, court observed.

This omission, court held, was critical. Proceedings under Section 82 CrPC, which deal with proclamation of an accused as absconding, require strict adherence to procedural safeguards. Proper service of notice and a clear satisfaction that the accused is deliberately evading the law are essential preconditions. In the absence of these, such proceedings cannot be sustained.

Court also highlighted an inherent contradiction in the approach of the investigating agency. On one hand, it treated the petitioner as absconding and initiated coercive measures such as non bailable warrants and a Look Out Circular. On the other hand, it continued to communicate with him and seek his participation in the investigation. This inconsistency, court noted, weakened the foundation of the proclamation proceedings.

Another significant factor considered by the court was the global travel restrictions during the COVID 19 pandemic. The petitioner’s inability to travel to India from Australia during this period, court held, could not be construed as deliberate evasion, particularly when he had demonstrated a willingness to cooperate and had even sought permission to travel.

Court clarified that earlier proceedings, in which relief had been declined, did not bar it from examining the legality of the proclamation order, especially since the said order had not been brought to its notice at that stage.

On a comprehensive assessment, court concluded that the initiation and continuation of proceedings under Section 82 CrPC were legally unsustainable. It therefore set aside the order declaring the petitioner a proclaimed person and quashed all consequential actions, including the Look Out Circular and other coercive steps.

“……It is pertinent to note that issuance of notice under Section 160 of Cr.P.C. presupposes that the person is required to join investigation, and is not evading the process of law in a manner warranting declaration as an absconder…….In this context, the conduct of the petitioner does not reflect that of a person absconding from justice. Rather, the material on record indicates that he remained in continuous contact with the I.O., complied with notices issued to him, and expressed willingness to participate in the investigation. The fact that he joined the investigation through electronic means during the pandemic, and placed on record the refusal of travel permission by the Australian authorities, further supports his explanation for non-appearance in person……”, court observed.

“In such circumstances, the very basis for treating the petitioner as a proclaimed person becomes doubtful. A person who is in continuous communication with the investigating agency and is responding to its directions cannot, in the ordinary course, be said to be absconding or concealing himself from the process of law. Moreover, the failure of the investigating agency to inform the petitioner about the proclamation proceedings, despite being in regular contact with him, assumes significance and lends credence to the petitioner's contention that he was kept unaware of the same”, it added.

Court, however, also directed the petitioner to appear before the concerned trial court within four weeks and participate in the proceedings, which are to continue in accordance with law.

Case Title: Manish Popli v. Central Bureau of Investigation & Ors.

Bench: Justice Swarana Kanta Sharma

Date Of Judgement: 24.03.2026