Person Accused Of Offences Not Mentioned Under Section 82(4) CrPC Not Deemed As Proclaimed Offender: Gujarat High Court

The Gujarat High Court has said that a person accused of only those offences enumerated under Section 82(4) can be declared a proclaimed offender noting that the nature of the offences was serious also carrying the safeguard of an inquiry as provided under the provision. It further said that a person accused of offences other than the ones under section 82(4) and against whom a proclamation has been published under section 82(1) can be called a 'Proclaimed Person'. Section 82(4) states that where a proclamation published under subsection (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of IPC and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it things fit, pronounce him a "proclaimed offender" and make a declaration to that effect. Some of the offences mentioned include murder, culpable homicide not amounting to murder, Robbery, Dacoity, Theft, extortion. Justice PM Raval observed that Section 82(1) empowers a court to publish a written proclamation against a person, requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation. It noted that Section 82(2) stipulates the manner and procedure of such proclamation. Section 83(3) stipulates that a statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub- section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.It further noted:"Section 82(4) stipulates that a person, in respect of whom a proclamation has been published under section 82(1), if he fails to appear at the specified place and time required by the proclamation and if he is accused of offences mentioned in Section 82(4), the court may pronounce him as a proclaimed offender, after making such inquiry as it things fit. Section 82(5) stipulates that the provisions of Section 82(2) and (3) shall apply to a declaration made by the court under section 82(4) as they apply to a proclamation made under 82(1). Other than section 82(4), Section 82 does not stipulate the consequences of non-compliance of the proclamation issued under it. 82(4) stipulates that where the proclaimed person fails to appear at the specified place and time, the court may pronounce him as a proclaimed offender. This pronouncement as a proclaimed offender can only be issued if he is accused of the offences stipulated in 82(4) and that also, only after the court has made such inquiry as it deems fit. There is no provision, other than section 82(4) in the Cr.P.C., under which the court can pronounce a person as a proclaimed offender"The court rejected the State's argument that every person in respect of whom a proclamation has been published is deemed to be a proclaimed offender irrespective of the provisions of Section 82(4) CrPC.The court said that if such contention is considered, then the consequence would be that a person against whom a proclamation has been published and is not accused of any of the offences mentioned in Section 82(4) CrPC would be deemed so, without the safeguard of an inquiry stipulated in section 82(4). "This cannot be the intention of the legislature. The offence enumerated in section 82(4) are serious in nature. It could not be the intention of the legislature that qua a person who is accused of offences that are serious in nature, the safe guard of an inquiry is stipulated and no such safeguard is stipulated qua a person who is accused of offences that may not be so serious- (like the offence in case on hand)," the court said. The court referred to Sections 40, 41, 43 and 73 CrPC with respect to a proclaimed offender and said that these clearly show that there are adverse consequences attached to being declared a proclaimed offender. The court said that intention of the legislature cannot be that such adverse consequences "would automatically get attracted to a person qua" whom a proclamation has been published and is accused of offences of a less serious nature. "I am thus of the considered view that a person who is accused of offences other than the ones enumerated in section 82(4) and qua whom a proclamation has been published under section 82(1) would be a Proclaimed person' and not a deemed 'Proclaimed Offender'," the court said. The petitioner had moved the high court challenging trial court order rejecting his application under Section 84 CrPC. The petitioner's father was facing trial in a Section 138 Negotiable Instruments Act case and had gone missing. The petitioner had filed a missing person's report. In the mean time attachment proceedings had...

Person Accused Of Offences Not Mentioned Under Section 82(4) CrPC Not Deemed As Proclaimed Offender: Gujarat High Court

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Person Accused Of Offences Not Mentioned Under Section 82(4) CrPC Not Deemed As Proclaimed Offender: Gujarat High Court

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