Delhi HC issues comprehensive guidelines to be followed by lower Courts before declaring Proclaimed Offenders

The Delhi High Court in a recent judgement has issued comprehensive guidelines to be followed by the Courts before declaring a person as a Proclaimed  Offender.  

The order was passed by a single judge bench of Justice JR Midha while hearing a case in which both the petitioners were declared as Proclaimed Offenders without following due process of law.in this case the  Magistrate declared the petitioner as a proclaimed offender without satisfying himself as to the factum of service of notice upon the petitioner as the Police was unable to furnish the complete address of the petitioner and the notices were not sent to the petitioner at the correct address. All addresses furnished by the respondent were found to be incorrect and the petitioner was declared a proclaimed offender but was never served any summons/warrants.

The Court while issuing the guidelines observed that “ declaring a person as a Proclaimed Offender leads to a serious offence under Section 174A IPC which is punishable for a period upto 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law is followed. The second important aspect is that once a person has been declared as a Proclaimed offender, it is the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174A IPC”.

The Guidelines issued by the High Court are:

• The police has to submit a report before the Court that the person against whom the warrant was issued, has absconded or is concealing himself. – The concealment has to be deliberate for the purpose of avoiding arrest. The mere fact that the police could not find the accused, is not enough
• Mere nonavailability at the address is not sufficient unless the concealment is deliberate to avoid arrest. A person who had gone abroad before the issue of the warrant of arrest cannot be said to be absconding or concealing. However, if the accused left India before proclamation but continues to remain outside India with a view to defeat or delay the execution of the warrant, he shall be taken to be absconding.
• Simultaneous issuance of both the processes, namely, warrant of arrest and proclamation is ex-facie contradictory, since it is only after the former that the latter can be issued where the concerned person has absconded or is hiding
• The police officer shall file an affidavit/status report to disclose the addresses and phone numbers/email addresses (if available) of the accused against whom the warrants had been issued and the reasons for inability to secure the presence of the accused before the Court
• Under Section 82 CrPC, the Court issuing proclamation shall record to its satisfaction that the accused had absconded or concealed himself. The expression ‗reason to believe‘ in Section 82 CrPC means that the Court has to be subjectively satisfied from the materials before it that the person has absconded or has concealed.
• Prior to the publication under Section 82(2)(i) CrPC, the police shall file an affidavit along with the photographs of the affixation of proclamation on the conspicuous part of the resident of the accused.
• Delhi Police shall put in place a Digital Surveillance System whereby it shall be given a “See only access to all Digital Data of the following departments to track the Proclaimed Persons/Offenders. The Digital Surveillance Team of Delhi Police and CBI shall also keep vigil on social media and websites like Facebook, WhatsApp, LinkedIn and Twitter etc. for searching the accused/Proclaimed Persons/Offenders with enhanced technological tools. The accused/Proclaimed Persons/Offenders can even be tracked by their photograph.
• All the Police Stations shall prominently display the names and pictures of the Proclaimed Persons/Offenders to make public aware and report the matter to the police or arrest the Proclaimed Persons/Offenders
•  A central data base of the proclaimed offenders be prepared similar to the Crime and Criminal Tracking Network & System (CCTNS) for sharing information between the state police with respect to the Proclaimed Persons/Offenders.
• If accused is suspected to be abroad, a Red Corner Notice may be issued from INTERPOL against him or if the accused is suspected to flee from the country, Look Out Notice/Circular be also issued
• Creation of a dedicated website for all persons against whom proclamation issued or who are declared Proclaimed Person/Offender and Interlinking of governmental / institutional databases for instant real time verification.

All the Courts below  have been 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

The Court has also  directed the Delhi Police as well as CBI to create a Special Cell for tracing out the Proclaimed Persons/Offenders; for attaching their movable/immovable properties and for their prosecution. Delhi Police as well as CBI are at liberty to have a consolidated Special Cell. This Special Cell be created within a period of four weeks.

In addition to this, the Court has also constituted a High-Powered Committee to supervise the implementation of Guidelines laid down by this Court relating to the Proclaimed Persons/Offenders which shall be notified by the Ministry of Home Affairs, Government of India within four weeks along with provisioning of necessary secretarial assistance.

The Committee has  been directed to consider Unified Criminal Justice System, Research Paper filed by Mr. Surinder S. Rathi which contains valuable innovative suggestions for bringing in the much desired efficiency in the Criminal Justice System through intelligent digitization. 504. The Committee shall supervise the implementation of the Guidelines issued by this Court to be followed by Delhi Police as well as CBI.

 

Case Title :Sunil Tyagi Vs Government of NCT Delhi CRL.M.C. 5328/2013