The Delhi High Court, in order to protect the rights of the accused declared as proclaimed offenders, has laid down detailed guidelines. Nevertheless, several systemic and institutional issues, in addition to legislative ones, still remain to be addressed..——-.IN the case of Sunil Tyagi vs. Govt. of NCT of Delhi in June last year, the Delhi High Court observed that the petitioners had been declared as proclaimed offenders without regard to the due process of law. Seized of the matter, the high court passed extensive guidelines to address the larger issues relating to inefficacies in the procedure pertaining to such proclamations generally..The court made two pertinent observations. Firstly, that the processes under Sections 82 and 83 of the Criminal Procedure Code [CrPC] were being invoked indiscriminately and without due caution. Secondly, once proceedings under sections 82 and 83 were complete, such cases were frequently and simply forgotten. The court observed that the same was a travesty of justice and created a situation which was unfair to the victims of the crime. The guidelines laid down by the court rely on the extensive reports and submissions of amici curiae to address the procedural issues comprehensively..Also read: Flysheets at police stations listing top ten criminals who aren't proclaimed offender or fugitive a violation of right to privacy and dignity, rules Allahabad HC.Duty of the State.In both the impugned cases, it was found that the State had been unable to identify and supply the correct addresses of the accused. It was surprising that the State had barely made any attempts to collect and verify the residential details of the accused, despite the registration of first information report [FIR] and the start of investigation. In this regard, the court directed that an investigating officer seeking a non-bailable warrant against an accused must show that he has made efforts to arrest the accused and that the accused is/was residing at a particular address, but cannot be found due a deliberate intention to avoid being arrested..“The Delhi High Court made two pertinent observations. Firstly, that the processes under Sections 82 and 83 of the Criminal Procedure Code were being invoked indiscriminately and without due caution. Secondly, once proceedings under sections 82 and 83 were complete, such cases were frequently and simply forgotten..The opportunity to collect the residential address of the accused is available to the State on two other occasions – at the time of arrest of the accused and, at the time of their bail. Apart from the residential address, these occasions also provide the State with the opportunity to collect other material particulars of the accused such as his assets and liabilities, movable/immovable properties, email addresses, social media accounts, mobile and telephone details, and so on. In this respect, the court mandated the filing of proformas by the investigating officer at the time of arrest, or, as details to be furnished by the accused as a condition of bail. These proformas, which were developed by S.S. Rathi, the Registrar of the Delhi High Court, in the report submitted to the court, provide the State with a standardized format in which such information should be collected..The collection of such information has twin benefits. Firstly, the lack of information often allows proclaimed offenders to escape without fear of apprehension. It goes without saying that such information, if utilised deftly, could potentially lead to the arrest of the proclaimed offender. Secondly, often the process of attachment of property is frustrated by the absence of details of the property owned by the accused. Therefore, such information could be utilised for successfully attaching the property of the accused..Supplementing the above, the Court also ordered for the documentary proof of identification to be collected by the investigating officer in addition to physical verification of the address of the accused..Accountability of process servers.How the process under sections 82 and 83 could be set into motion without the State being able to supply the correct address of the accused, is also a pertinent question. As per section 82, where a warrant has been issued and the person is absconding even after efforts have been made to execute the warrant, the Court may issue a proclamation directing that the 'proclaimed person' appear before the Court at a designated time. Such Proclamation must be read in the town or place where the person resides and a copy of the same must also be affixed to the house of the accused..To meet the ends of procedural justice, it is imperative to affix the responsibility of the process servers vis-à-vis sections 82 and 83. In this context, another proforma developed for the purpose requires the process server to answer if the proclamation was read out in a conspicuous part of town and whether the same was recorded on video; whether the house of proclaimed person was identified and photographed; and whether the proclamation was affixed to such person's house and photographed, among other things. The proforma requires the process server to give reasons if any of the questions are answered in negative..Also read: Explained: Supreme Court's guidelines on grant of bail after chargesheet is filed.Practical difficulties.Several practical difficulties are expected to arise in the implementation of the Delhi High Court's directions and guidelines. For starters, the enforcement of the framework envisaged by the court requires sufficient manpower, which the law enforcement agencies may find constrained to spare. The same would also require much inter-state police coordination. The police would also require leveraging the advances of technology in investigation and the creation of infrastructure as well as the training of police officers in its use, which is bound to take time..Furthermore, in the absence of effective witness protection programmes, witnesses to proclamations may not be willing participants to the proceedings. In the same vein, securing the cooperation of local populations in the execution of the process under section 82 and 83 might also prove to be a challenge. There is also a need for creation of requisite infrastructure for storage and upkeep of movable property which is attached by the Courts..“Several practical difficulties are expected to arise in the implementation of the Delhi High Court's directions and guidelines..The high court's guidelines and declaration pertaining to proclaimed offenders are timely and urgently needed. Nevertheless, the court finds itself constrained by the text of the law in finding solutions to the problem. Even as Section 299 of the CrPC provides for the possibility of recording of evidence in absence of the accused in a limited sense, a legislative exercise providing express statutory backing to trial-in-absentia provisions while balancing the rights of the accused would deter the accused from absconding and delaying the trial indefinitely. For an effective implementation of the judgment of the court in practice and in principle, the systemic, institutional and legislative concerns highlighted above must be addressed adequately.
The Delhi High Court, in order to protect the rights of the accused declared as proclaimed offenders, has laid down detailed guidelines. Nevertheless, several systemic and institutional issues, in addition to legislative ones, still remain to be addressed..——-.IN the case of Sunil Tyagi vs. Govt. of NCT of Delhi in June last year, the Delhi High Court observed that the petitioners had been declared as proclaimed offenders without regard to the due process of law. Seized of the matter, the high court passed extensive guidelines to address the larger issues relating to inefficacies in the procedure pertaining to such proclamations generally..The court made two pertinent observations. Firstly, that the processes under Sections 82 and 83 of the Criminal Procedure Code [CrPC] were being invoked indiscriminately and without due caution. Secondly, once proceedings under sections 82 and 83 were complete, such cases were frequently and simply forgotten. The court observed that the same was a travesty of justice and created a situation which was unfair to the victims of the crime. The guidelines laid down by the court rely on the extensive reports and submissions of amici curiae to address the procedural issues comprehensively..Also read: Flysheets at police stations listing top ten criminals who aren't proclaimed offender or fugitive a violation of right to privacy and dignity, rules Allahabad HC.Duty of the State.In both the impugned cases, it was found that the State had been unable to identify and supply the correct addresses of the accused. It was surprising that the State had barely made any attempts to collect and verify the residential details of the accused, despite the registration of first information report [FIR] and the start of investigation. In this regard, the court directed that an investigating officer seeking a non-bailable warrant against an accused must show that he has made efforts to arrest the accused and that the accused is/was residing at a particular address, but cannot be found due a deliberate intention to avoid being arrested..“The Delhi High Court made two pertinent observations. Firstly, that the processes under Sections 82 and 83 of the Criminal Procedure Code were being invoked indiscriminately and without due caution. Secondly, once proceedings under sections 82 and 83 were complete, such cases were frequently and simply forgotten..The opportunity to collect the residential address of the accused is available to the State on two other occasions – at the time of arrest of the accused and, at the time of their bail. Apart from the residential address, these occasions also provide the State with the opportunity to collect other material particulars of the accused such as his assets and liabilities, movable/immovable properties, email addresses, social media accounts, mobile and telephone details, and so on. In this respect, the court mandated the filing of proformas by the investigating officer at the time of arrest, or, as details to be furnished by the accused as a condition of bail. These proformas, which were developed by S.S. Rathi, the Registrar of the Delhi High Court, in the report submitted to the court, provide the State with a standardized format in which such information should be collected..The collection of such information has twin benefits. Firstly, the lack of information often allows proclaimed offenders to escape without fear of apprehension. It goes without saying that such information, if utilised deftly, could potentially lead to the arrest of the proclaimed offender. Secondly, often the process of attachment of property is frustrated by the absence of details of the property owned by the accused. Therefore, such information could be utilised for successfully attaching the property of the accused..Supplementing the above, the Court also ordered for the documentary proof of identification to be collected by the investigating officer in addition to physical verification of the address of the accused..Accountability of process servers.How the process under sections 82 and 83 could be set into motion without the State being able to supply the correct address of the accused, is also a pertinent question. As per section 82, where a warrant has been issued and the person is absconding even after efforts have been made to execute the warrant, the Court may issue a proclamation directing that the 'proclaimed person' appear before the Court at a designated time. Such Proclamation must be read in the town or place where the person resides and a copy of the same must also be affixed to the house of the accused..To meet the ends of procedural justice, it is imperative to affix the responsibility of the process servers vis-à-vis sections 82 and 83. In this context, another proforma developed for the purpose requires the process server to answer if the proclamation was read out in a conspicuous part of town and whether the same was recorded on video; whether the house of proclaimed person was identified and photographed; and whether the proclamation was affixed to such person's house and photographed, among other things. The proforma requires the process server to give reasons if any of the questions are answered in negative..Also read: Explained: Supreme Court's guidelines on grant of bail after chargesheet is filed.Practical difficulties.Several practical difficulties are expected to arise in the implementation of the Delhi High Court's directions and guidelines. For starters, the enforcement of the framework envisaged by the court requires sufficient manpower, which the law enforcement agencies may find constrained to spare. The same would also require much inter-state police coordination. The police would also require leveraging the advances of technology in investigation and the creation of infrastructure as well as the training of police officers in its use, which is bound to take time..Furthermore, in the absence of effective witness protection programmes, witnesses to proclamations may not be willing participants to the proceedings. In the same vein, securing the cooperation of local populations in the execution of the process under section 82 and 83 might also prove to be a challenge. There is also a need for creation of requisite infrastructure for storage and upkeep of movable property which is attached by the Courts..“Several practical difficulties are expected to arise in the implementation of the Delhi High Court's directions and guidelines..The high court's guidelines and declaration pertaining to proclaimed offenders are timely and urgently needed. Nevertheless, the court finds itself constrained by the text of the law in finding solutions to the problem. Even as Section 299 of the CrPC provides for the possibility of recording of evidence in absence of the accused in a limited sense, a legislative exercise providing express statutory backing to trial-in-absentia provisions while balancing the rights of the accused would deter the accused from absconding and delaying the trial indefinitely. For an effective implementation of the judgment of the court in practice and in principle, the systemic, institutional and legislative concerns highlighted above must be addressed adequately.
