Chapter VI of the Code of Criminal Procedure, 1973 deals with the process to
compel appearance. The said Chapter is divided in Four Parts. Part ‘A'
relates to summons; Part ‘B' relates to warrant of arrest, Part
to proclamation and attachment; and Part ‘D' relates to other rules
Section 82 of the Code of Criminal Procedure, 1973 deals with Proclamation
for persons absconding. It is necessary to quote Section 82 of the Code in
its entirety, which reads as under:
82. Proclamation for person absconding:
- If any Court has reason to believe (whether after taking evidence or
not) that any person against whom a warrant has been issued by it has
absconded or is concealing himself so that such warrant cannot be executed,
such Court may publish a written proclamation 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.
- The proclamation shall be published as follows:
- it shall be publicly read in some conspicuous place of the town or
village in which such person ordinarily resides;
- it shall be affixed to some conspicuous part of the house or homestead
in which such person ordinarily resides or to some conspicuous place of such
town or village;
- a copy thereof shall be affixed to some conspicuous part of the
- the Court may also, if it thinks fit, direct a copy of the proclamation
to be published in a daily newspaper circulating in the place in which such
person ordinarily resides.
- 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.
- Where a proclamation published under sub-section (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 the Indian Penal Code (45 of 1860), 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 thinks fit, pronounce him a proclaimed
offender and make a declaration to that effect.
- The provisions of sub-sections (2) and (3) shall apply to a declaration
made by the Court under sub-section (4) as they apply to the proclamation
published under sub-section (1).
From perusal of sub section (1) of Section 82 of the Code, it is clear that
the Court must have reasons to believe that the person, against whom warrant
has been issued, has absconded or concealing himself so that the warrant
cannot be executed. In view of the said provision, only after the Court is
satisfied that the person is absconding, or is concealing, and it is not
possible to arrest him, the Court should issue proclamation requiring the
accused to appear on a specified date on specified time not less than 30
days from the date of publication of such proclamation.
Scope of Section 82 of Code of Criminal Procedure, 1973
Constitution of India empowers every person to defend himself of the
charges/s levelled against him. Constitution of India does not permit a
person to be condemned unheard without affording an opportunity to him. If
the accused does not appear in Court even after the issuance of warrant of
arrest, then the Magistrate can compel the presence of the accused by
issuing proclamation of absconding accused and further order attachment of
property of person absconding under Sections 82 & 83 of Code of Criminal
The issuance of a warrant for the arrest of a proclaimed
offender under Section 82 (1) or 82 (4) Cr. P. C is for the purpose of
ensuring his presence before the Court. The warrant issued in a pending case
is aimed at apprehending the accused and bringing him before the Court so
that he can be tried for the commission of offence accused/charged.
The Scheme provided by Section 82 of the Code denotes a mandate, if Section
82 is analysed, it is necessary that;
- The Court should have reason to believe that the person against whom
a warrant has been issued by its has absconded;
- After recoding such satisfaction, the Court should require the
concerned person to appear at a specified place and at a specified time,
not less than 30 days. [Savita Ben Govind Bhai Patel Vs State of Gujarat, 2004 Cri. L. L
Though the process under Sections 82 & 83 of the Code of Criminal
Procedure, 1973 can be issued in a summons case and against a witness.
But to lay a foundation for the issuance of a proclamation under Section
82 with an accompanying in the order for attachment under Section 83 Cr.
P. C, it is necessary strictly to comply with the provisions of law
relating to the issuance of warrant of arrest, in a case where summons
is the ordinary mode of enforcing attendance, as held in [Sanjay Sarin Vs State of Punjab, 2013 Cri. L. J 408 (P&H)].
Issuance of Non-bailable Warrant of Arrest is a Pre-requisite for issuance
In terms of Section 73 of Cr. P. C, the Magistrate has jurisdiction and
power to issue warrant of arrest, which can be directed against any:
- escaped convict,
- proclaimed offender, or
- against any person who is an accused of a non-bailable offence and is
against whom warrant of arrest can be issued, must fall in either of the
aforesaid three categories.
Process under Sections 82 & 83 of Cr. P. C cannot be issued unless it is
established that a warrant had already been issued against the person wanted and
that person was absconding. Prior to the issuance of proclamation, issuance of
warrant of arrest by the Magistrate is sine qua non. In the absence of any
material to show that the Court has on any earlier occasion issued warrants of
arrest order directing issuance of proclamation cannot be sustained. [Sunil Kumar Vs State, 2002 Cri. L. J 1284].
issuance of a warrant of arrest and a proclamation under Section 82 (1) of
Code of Criminal Procedure, is illegal and improper vitiating the
consequential order of attachment and ancillary order passed. The
Magistrate, before the issuance of process under Section 82 of Code of
Criminal Procedure is statutorily under obligation to consider that there
may be more than one reason for non-execution of warrant under
Only being an accused of a non-bailable offence is not a ground to issue
warrant of arrest, as per the provisions of Section 73 of the Code. The said
accused who is wanted in a case involving a non-bailable offence, must also
be evading his arrest.
The word 'and' used in Section 73 (1) of the Code is
a conjunctive clause. Thus, both the conditions should simultaneously exist
to enable the Court to issue warrant of arrest. This position of law should
be considered by the Court while issuing a warrant of arrest. This means
that a person not only should be an accused of an offence, non-bailable in
nature, but also should be found evading his arrest.
The Hon'ble Supreme Court in the case of [Raghuvansh Dewanchand Bhasin
Versus State of Maharashtra reported in (2012) 9 SCC 791] held that issuing
non-bailable warrant of arrest directly involves curtailment of liberty of a
person. The Hon'ble Supreme Court took note of the earlier Judgment in the
case of [Inder Mohan Goswami Versus State of Uttaranchal reported in
(2007) 12 SCC 1. Paragraph 12 of the Judgment rendered in the case of
Raghuvansh Dewanchand Bhasin (supra) is quoted hereunder:
12. In Inder Mohan Goswami Vs State of Uttaranchal, a Bench of three
learned Judges of this Court cautioned that before issuing non-bailable
warrants, the Courts should strike a balance between societal interests and
personal liberty and exercise its discretion cautiously. Enumerating some of
the circumstances which the Court should bear in mind while issuing non-bailable
warrant, it was observed (SCC PP. 17-18, Paras 53-55) 53.
Non-bailable warrant should be issued to bring a person to Court when
summons or bailable warrants would be unlikely to have the desired result.
This could be when:
- It is reasonable to believe that the person will not voluntarily
appear in court; or
- The police authorities are unable to find the person to serve
him with a summon; or
- It is considered that the person could harm someone if not
placed into custody immediately.
54. As far as possible if the Court is of the opinion that a summon will
suffice in getting the appearance of the accused in the Court, the summon or
the bailable warrants should be preferred. The warrants either bailable or
non-bailable should never be issued without proper scrutiny of facts and
complete application of mind, due to the extremely serious consequences and
ramifications which ensue on issuance of warrants. The Court must very
carefully examine whether the Criminal Complaint or FIR has not been filed
with an oblique motive.
55. In complaint cases, at the first instance, the Court should direct
serving of the summons along with the copy of the complaint. If the accused
seem to be avoiding the summons, the Court, in the second instance should
issue bailable warrant. In the third instance, when the Court is fully
satisfied that the accused is avoiding the Court's proceeding intentionally,
the process of issuance of the non-bailable warrant should be resorted to.
Personal liberty is paramount, therefore, we caution Courts at the first and
second instance to refrain from issuing non-bailable warrants.
If liberty of a person is to be curtailed, the same has to be done strictly
in accordance with the law so provided for. Thus, the Court has to record
his satisfaction that the conditions laid down in the law for issuing
warrant of arrest has been fulfilled and the procedure has been complied
with. This satisfaction of the Court should be reflected in the order
itself, to be gathered from the record, then only warrant of arrest can be
issued. The Court has to prima-facie be satisfied that the person accused of
committing a non-bailable offence is also evading his arrest. There has to
be material before the Court to reach at the aforesaid conclusion.
recording such subjective satisfaction to the effect that the accused is
also evading his arrest, which should be on the basis of the materials
placed before the Court, warrant of arrest cannot be issued. This
satisfaction can be derived from the Police paper / Case diary. Mere absence
of the accused cannot give rise to a presumption that he is evading arrest,
which in turn cannot be the sole ground to issue warrant of arrest.
Issuance of Proclamation for Person Absconding
Sub section (2) of Section 82 of the Code provides how the proclamation has
to be published. Section 82(2)(i)(a)(b)(c) provides that the same has to be
publicly read in some conspicuous place of the town or village where the
person ordinarily resides. The proclamation should also be affixed to some
conspicuous part of the house of homestead where the person ordinarily
There is a requirement of fixing a copy of the proclamation at some
conspicuous part of the court-house also. Over and above the said procedure,
a provision has been made in 82 (2)(ii) of the Code for a direction to
publish the same in a newspaper. This part relating to publication in
newspaper is not mandatory, but the previous procedures are.
Sub section (3) of Section 82 of the Code is a very important provision,
which requires the Court to record that the requirements of sub section
(2)(i) of Section 82 of the Code has duly been complied with. This provision
is also mandatory in nature.
Sub section (4) of Section 82 of the Code provides that if a person is
accused of an offence punishable under Sections 302, 304, 364, 367, 382,
392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of
the Indian Penal Code (45 of 186), and such person fails to appear,
complying with the proclamation, he will be declared as a proclaimed
The Criminal Law (Amendment) Act of 2005 inserted Section 174-A in
the Indian Panel Code, 1860. It states that when a person fails to
abide by the terms of the proclamation under Section 82 (1) of the
Code of Criminal Procedure, 1973, he/she shall be punished with
imprisonment for a period of maximum three years.
In case of non-abidance to the proclamation issued under offences laid down
under Section 82 (4) of the Code of Criminal Procedure, 1973 and the person
has been announced as a proclaimed offender, the punishment shall be
imprisonment for a term that may extend to seven years and a fine could also
be imposed on same.
The Section 82 is a penal clause, making the accused susceptible to
punishment under Section 174-A of Indian Panel Code, 1860. In this
backdrop the procedure enacted under Section 82 has to be followed
violation of any procedure of law attracts a penal provision (herein
declaration as proclaimed offender), the procedure, which seeks to declare
him an offender, has to be strictly followed and cannot be relaxed. This
penal provision makes compliance of Section 82 (3) of the Code mandatory in
In this regard it is necessary to refer a Judgment of Hon'ble
Supreme Court in the case of [Securities and Exchange Board of India Versus Gaurav Varshney & Another reported in (2016) 14 SCC 430] (Para 32.5) holding
32.5 And filthy because, contravention of Section 12(1-B) entails
penal consequences, and therefore, cannot be construed as directory.
We therefore hereby accept the submission advanced on behalf of the
learned counsel for the Board and hold that the bar created for new
operators, of a collective investment initiative, was absolute and
mandatory. The bar under Section 12(1-B) restrained persons (who
were not engaged in any collective investment venture up to
25.01.1995) from commencing activities concerning collective
investment, till they had obtained a certificate of registration, in
consonance with the Collective Investment Regulations.
Thus, from the reading of Section 82 of the Code, it is clear that at first
the Court has to have sufficient materials before it to reach to a
conclusion to believe that a person, against whom warrant of arrest has been
issued, is absconding or is concealing himself, and it is not possible for
the authorities to execute the warrant of arrest.
This satisfaction has to
be recorded in the order while issuing processes under Section 82 of the
Code. In this situation also, from the records of the case, the Court has to
derive the aforesaid satisfaction. Non-recording of subjective satisfaction
in the order will make the order bad and a non-speaking one. A non-speaking
order involving a procedure, which attracts a penal offence (if the order is
not complied with), cannot sustain be in the eyes of law.
The provisions of Section 82 of the Code of Criminal Procedure, 1973 are to
be strictly construed and to be followed as it affects the personal liberty
of a citizen. Section 82 Cr. P. C consists of three sub-sections.
Sub-section (1) provides for issuance of proclamation, whereas, sub-sections
(2) & (3) deal with the procedure to be adopted for publication of
proclamation directed to be issued in consequences of an order passed under
The provisions of sub-section (2) as to publishing of
proclamation are to be strictly complied with. All the three modes
prescribed by this sub-section must be adopted. The provisions of
sub-section (2) of Section 82 Cr. P. C are imperative. The non-conformance
of Section 82 (1) and (2) of Criminal Procedure Code established by law
within the meaning of Article 2 of the Constitution of India, where a power
is given to do a certain thing in a certain way, the thing must be done in
that way or not at all. Other methods of performance are necessarily forbidden. [Pawan
Kumar Gupta Vs State of West Bengal, 1973 Cri. L. J 1368 (Cal.); Sunil Kumar Vs State, 2002 Cri. L. J 1284 (Delhi)].
Further, sub-section (1) of Section 82 of the Code provides that the Court
has to publish the written proclamation requiring the person to appear on a
specified date and specified place not less than 30 days from the date of
such publication. Thus, it is the duty of the Court to mention the specific
place and the date where the person needs to present himself in compliance
of the proclamation order. This date and place should be mentioned in the
Form IV, which is part of Second Schedule of Code is the form in which
proclamation is required to be issued. The said form provides for mentioning
the place and date, for the person to appear in compliance of the order.
This is a statutory form. This form is filled by the Office of the Court.
Thus, the date and place, which is mentioned in the said form must also be
reflected in the order-sheet. This will mean that the Court has fixed the
place, time and the date and not the Bench Clerks or the Office Clerks, as
it is the mandate of the law that the Court has to fix the place, time and
the date of appearance. The Form IV, which is a statutory form, must be
scrupulously followed and filled up as per the date, time, place fixed by
the Court, which should be reflected in the order-sheet.
The Supreme Court, in the context of service of summons under the
Civil Procedure Code, 1908, in the case of [Auto Cars Vs. Trimurti Cargo Movers
Pvt. Ltd. & Ors., (2018) 15 SCC 166], held that any non-compliance with the
statutory requirements regarding mentioning of the specific day, date, year
and time would amount to material infirmity rendering summons as well as
their service bad in law and consequently cannot be held to be duly served.
The Supreme Court, while taking note of the statutory form as mentioned in
the Appendix - B to the Code of Civil Procedure, as also the provisions of
Section 27 and Order V of the Code of Civil Procedure, 1908 held that the
requirements specified in law by the statute are not an empty formality. The
Supreme Court, while interpreting the provisions of the Code of Civil
Procedure, held that the provisions relating to service of summons are
mandatory in nature and relied upon a well settled principle of
interpretation that when the legislature provides a particular thing to be
done in a particular manner, then such thing has to be done in the same
prescribed manner and in no other manner.
Another aspect which has to be taken note of, is that the Hon'ble Supreme
Court in the case of [State of Madhya Pradesh Vs. Pradeep Sharma, (2014) 2 SCC 171], after relying on other Judgments, has held that if a person is
declared as proclaimed offender / absconder in terms of Section 82 of the
Code, he is not entitled for relief of anticipatory bail.
Thus, when the
relief of anticipatory bail is curtailed, as a consequence of an order
passed under Section 82 of the Code, declaring a person absconder, the said
order cannot be passed in mechanical manner without recording satisfaction
and reasons nor can the same be passed without following the procedure as
laid down in the Code. In view of the aforesaid circumstances and the
consequence one has to face, the Court has to be very cautious while issuing
an order under Section 82 of the Code.
Issuance of Order of Attachment
Here it is necessary to quote the provisions of Section 83 (1) of the Code,
which reads as under:
83. Attachment of property of person absconding – (1) The Court issuing a
proclamation under section 82 may, for reasons to be recorded in writing, at
any time after the issue of the proclamation, order the attachment of any
property, movable, or immovable, or both, belonging to the proclaimed
Provided that where at the time of the issue of the proclamation the Court
is satisfied, by affidavit or otherwise, that the person in relation to whom
the proclamation is to be issued:
- is about to dispose of the whole or any part of his property, or
- is about to remove the whole or any part of his property from the local
jurisdiction of the Court, it may order the attachment simultaneously with
the issue of the proclamation.
Section 83 (1) of the Code clearly provides that the Court, which is issuing
proclamation under Section 82 of the Code, for the reasons to be recorded in
writing, may order for attachment of moveable or immovable properties. It
is, thus, the mandate of the law that the reasons for issuing attachment
order has to be recorded in the order itself. Non recording of the reasons
will make the order invalid and unsustainable.
Further, from the aforesaid provision of law, it is clear that attachment
order under Section 83 of the Code can be issued to attach the property
belonging to the proclaimed person. Statement to the effect that the
proclamation was duly published has to be made in terms of Section 82 (3) of
the Code, which provides that the Court has to record a statement in writing
to the effect that the proclamation was duly published on the specified date
in the specified manner as provided in Clause (i) of sub section (2) to
Section 82 of the Code.
This statement of the Court, which is to be recorded
as per the statute, is a conclusive evidence that the requirement of law has
been complied with, which is a pre-requisite for declaring a person a
proclaimed offender/person absconding. Without recording the aforesaid
statement in writing to the effect that the requirement of Section 82 of the
Code has been complied with, a person cannot be declared to be a proclaimed
offender/absconder, an attachment order in terms of Section 83 of the Code
cannot be issued.
Thus, before issuing any attachment order under Section 83 of the Code
against a person absconding, the statement, as envisaged in terms of Section
82 (3) of the Code has to be on record. This is all the more necessary, as
mentioned earlier, the said person can be tried and punished for a separate
offence punishable under Section 174-A of the Indian Penal Code.
The Court Has Reason To Believe - Meaning
Section 26 of the Indian Penal Code, 1860 defines the meaning of reason
to believe. The words reason to believe contemplate subjective
satisfaction of the Court on the basis of the materials before the
Magistrate acting under Section 82 of the Code.
According to the provisions of the Section which has been held by the
Hon'ble Jharkhand High Court, through several cases, to be mandatory, a
proclamation can be issued only when the Court is clearly satisfied by
examining the Serving Officer or in any other manner that a warrant has
already been issued and that the accused is absconding or concealing and
warrant cannot be executed for that reason, whatever be the intention. There
should be a Judicial finding as to the abscondance or concealment on
Where materials on record show that the accused having knowledge of the
Court proceedings avoids process of the Court, he can be declared as
proclaimed offender under Section 82 of the Code.
An accused will be declared absconder when the court is satisfied that the
accused had left his permanent residence or he is avoiding service or there
is no chance of his arrest in near future. As held by the Hon'ble Jharkhand
High Court in the case of [Mahendra Kumar Ruiya Vs The State of
Jharkhand & Another, 2013 (3) JLJR 407 (Jhar)] and in other cases that
non-submission of execution/report in the Court is not the only sole
criterion to adjudge that the person against whom warrant has been issued is
concealing himself or absconding so that the warrant may not be executed.
The Court, in such cases, may rely on other materials available on record or
may take evidences which may lead the Court to reasonably believe that the
person is absconding or concealing himself. But, under no circumstances, an
Order under Section 82 of the Code must be passed mechanically. The Order
must reflect that the Court has applied its Judicial mind and only after its
subjective satisfaction, the Court has reason to believe that the person has
absconded and a proclamation under Section 82 of the Code is essential.
There is an exception to this rule when both the processes, i.e.,
proclamation under Section 82 of the Code and attachment order in terms of
Section 83 of the Code are issued simultaneously. The first proviso to
Section 83 (1) of the Code provides for the circumstance and the situation
where it is necessary to issue both the proclamation and attachment order
simultaneously and how the same can be issued and the requirements thereof.
Since this is not the subject matter before this Court, I am not dealing
with the said proviso. The fact remains that in a case where processes in
terms of Section 82 and 83 of the Code are issued separately, then without
recording a statement, as envisaged under Section 82 (3) of the Code,
attachment order under Section 83 of the Code cannot be issued. The absence
of the said statement will lead to a conclusion that there was nothing
before the Court to suggest that the proclamation under Section 82 of the
Code so issued, was properly served. Until and unless proclamation under
Section 82 of the Code is properly served, attachment order under Section 83
of the Code cannot be issued.
Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of
Email: [email protected], [email protected]