[BREAKING] Delhi High Court issues guidelines to declare, trace "Proclaimed Offenders" [Read Judgment]

In a 185-page long judgment of significant import, the Delhi High Court has laid down comprehensive guidelines on how to go about declaring persons absconding from the law as "proclaimed offenders" under Section 82 of the Code of Criminal Procedure (CrPC) [Sunil Tyagi vs Govt of NCT of Delhi, Tarun Kumar vs State].

The guidelines are aimed at ensuring that persons are not declared "proclaimed offenders" in a routine manner, and also contain suggestions to aid in tracing proclaimed offenders.

Justice JR Midha issued the guidelines bearing in mind the serious consequences that follow the declaration of a person as a "proclaimed offender", which includes prosecution under Section 174A of the Indian Penal Code (IPC).

Under Section 174A, IPC a person who fails to surrender before the authorities, despite being declared a proclaimed offender, is punishable with imprisonment of up to three years or seven years, depending on the alleged offence.

A time period has not been laid down for prosecution under Section 174A, IPC. However, the High Court has now laid down that if a proclaimed offender does not surrender or is not traced within a six month period, such person should be prosecuted under this provision.

"If the accused has also violated the condition(s) of bail bond by non-appearance in Court, the accused be also prosecuted under Section 229A IPC," the Court added.

The Court was prompted to issue the guidelines while dealing with two petitions wherein it was alleged that the petitioners were declared proclaimed offenders without following due procedure.

Upon finding that they were not served proper notice, the Court allowed their pleas and quashed the orders declaring them "proclaimed offenders."

Highlights of the guidelines issued by the Court include:

• Issuance of an arrest warrant against the accused person found absconding is a pre-condition for issuing a proclamation. An NBW and Section 82, CrPC proclamation cannot be issued simultaneously as this would be ex-facie contradictory.

• At the investigation stage, the mere absence of an accused from his residence would not be sufficient for the issuance of a non-bailable warrant (NBW) of arrest; the investigating agency must show that the accused is deliberately avoiding arrest. It would be more serious if an accused is absconding during trial and mere non-appearance is sufficient to issue an arrest warrant, including a NBW.

• A person can be declared a proclaimed offender only if such person has deliberately absconded or there is deliberate concealment. Mere non-availability at address is not sufficient. "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", the Court explained.

• An affidavit or status report with details such as available addresses, contact details, proof of service of arrest warrant and the reasons for the inability to secure the person's presence should be submitted by the police prior to proclaiming such person a "proclaimed offender."

• Prior to publication of a person's "proclaimed offender" status in newspapers under Section 82 (2)(ii), CrPC, the police is also required to submit photo proof of having affixed the proclamation in a conspicuous place of the house where the person resides.

• To enhance the efficiency declaring persons proclaimed offenders, the Court has called for mandatory affixation of the accused person's photograph, the inclusion of mobile numbers, landline connections and social media account details, bank account details in the arrest memo.

• The execution of processes under Sections 82 (proclamation for person absconding) and 83 of the CrPC (attachment of property of person absconding) should be done by a person not below the rank of Sub-Inspector. These proceedings must be photographed and video graphed.

• Resident Welfare Associations or Market societies should also keep track of floating population in their localities.

• Measures suggested for aiding the authorities to trace proclaimed offenders include making public the names, photos and other details of such persons on government websites, district court websites, including a simple search option for tracking such persons on police websites, developing a national search database which would enable the public also to give tip-offs etc.

• Delhi Police shall put in place a Digital Surveillance System whereby it shall be given a “See only" access to the digital data of certain named departments to track proclaimed offenders. The named departments include those having nationalized and private bank savings/ loan/ credit card holders' account data, PAN Card holders' data, MTNL data, passport holders' data, government and private insurance holders' data, Aadhaar and Voter card holders' data, driving licence holders' data, death registration data. The Digital Surveillance Team of Delhi Police and the CBI shall also keep vigil on social media and websites.

• The Court further proposed the use of Bharat map of the National Informatics Centre (NIC) to flag the addressees of proclaimed offenders. Thereby, real time pop-up displays of all the proclaimed persons and offenders, convicts and other accused in a locality can be shown. The pop-up shall display the image, name, address and other details in mobile/tab/pad device or laptop or desktop for usage by the Police, Intelligence agencies and the Judiciary only.

• Unique digital IDs can be assigned to pre-verified addresses. The code created for this purpose can be used by the police as well as by the Judiciary for cross-checking the address for verification purposes at the time of arrest/ surrender and acceptance of bonds.

• A Central database of proclaimed persons and offenders should be prepared. Look Out Circulars should be issued where the accused has left the country. Among other measures, the Court has also called for the creation of dedicated websites containing the particulars of persons arrested or bailed in criminal offences, for persons declared proclaimed offenders. A "Composite Proclaimed Persons and Offenders Website" should be created, the Court said.

• A dedicated cell for digital tracking and arresting proclaimed offenders needs to be created, the Court said. Such cells in other States and Union Territories would also aid in exchanging real-time data to contain such persons, the Judge observed.

• Steps should be initiated for impounding or revoking the passport of proclaimed offenders.

• The Court has suggested the use of INTERPOL channels if the proclaimed offender is suspected to be abroad.

• In all cases in which an accused is absconding, except where the alleged offence is exceedingly trivial or petty nature or where special circumstances exist, the Court may consider recording evidence against the absconded offender under section 299, CrPC (recording evidence in the absence of accused). It is mandatory to record reasons (that the accused is absconding and there is no immediate prospect of arresting him) before recording evidence under this provision. Guidelines have also been issued on how to go about recording evidence under this provision where there is more than one accused.

Additional directions issued; Special Cell, High Powered Committee to be formed

Having issued the guidelines, the Court proceeded to direct subordinate courts to not simply close the matter after having declared a person a "proclaimed offender."

The tendency of courts and the police to close the case after issuing a proclamation without making any further effort to trace the offenders or their assets is "a serious lapse", the Court opined. Justice Midha has called on the courts to continue monitoring the case progress even after the proclamation.

All Courts were directed to send quarterly compliance reports to the High Court Registrar General, which shall disclose the following details:

• Number of proclaimed offenders traced or arrested;

• Number of cases in which assets of proclaimed offenders have been attached;

• Number of cases in which the accused have been prosecuted under Section 174A and/or under Section 229A IPC;

• Number of cases in which evidence has been recorded under Section 299, CrPC (recording of evidence in the absence of the accused).

In the course of the judgment, the Court also issued the following additional directions:

• The Delhi Police and Central Bureau of Investigation (CBI) shall create a Special Cell for tracing proclaimed offenders and attaching their properties and for their prosecution within four weeks. The two agencies are also at liberty to have a consolidated Special Cell.
  

• A High-Powered Committee is to be constituted to supervise the implementation of the guidelines laid down by this Court relation to proclaimed offenders.
  

• The Committee, after taking suggestions from the Delhi Police and CBI, will decide which Guidelines can be implemented immediately. The Committee shall thereafter meet at least once a month for implementation of the remaining guidelines in a phased manner within a period of eight months to one year.
  

• The Committee shall also consider suggestions made by Surinder S Rathi in his research paper to opitmise the Criminal Justice System through intelligent digitization, the Court added.

[Read Judgement]