As per section 82(1), 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. Clause (2) and (3) deals with procedure.
Section 82(4) reads as follows: 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 things fit, pronounce him a proclaimed offender and make a declaration to that effect.
Non-appearance in response to a proclamation under section 82 is punishable under Section 174A IPC : Whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 82 of the Code of Criminal Procedure, 1973 shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
The query is whether if a person is not been accused of any of the offences mentioned in Section 82(4), can he be declared as a ‘proclaimed offender’?
The Punjab and Haryana High Court in Deeksha Puri vs. State of Haryana (2013) 1 RCR (Crl.) 159(2) held that provisions of Section 82 (4) Cr.P.C. incorporated by the 2005 amendment do not lay down that the persons accused of having committed offences mentioned under Section 82 (4) Cr.P.C. can only be declared a proclaimed offender. According to the Court, any other interpretation would render the provisions of section 174A IPC otiose and redundant.
Disagreeing with this view, the Delhi High Court in Sanjay Bhandari v. State (NCT of Delhi), (2018 SCC OnLine Del 10203 held 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’. It was further held that the provisions of Section 82 to 84 become applicable on the issuance of the proclamation and are not dependent on the declaration under section 82(4).
So the first part of Section 174A may be applicable to a person against whom a proclamation is published. The second part, which provides for greater punishment, deals specifically with ‘Proclaimed Offenders’.
In our opinion, the Delhi High Court view seems to be the correct way of interpreting Section 82(4). It is to be noted that the declaration that a person is a proclaimed offender can only be done under section 82(4) which unambigiously restricts it to cases involving certain offences. It is only sufficient to quote a recent judgment of Apex Court: The basic rule of strict construction of a penal statute is that a person cannot be penalised without a clear letter of the law. Presumptions or assumptions have no role in the interpretation of penal statutes – They are to be construed strictly in accordance with the provisions of law. Nothing can be implied. In such cases, the courts are not so much concerned with what might possibly have been intended. Instead, they are concerned with what has actually been said.
But there is something that bothered the Punjab and Haryana High Court in Deeksha Puri. The judge noted that the effect of following Section 82(4) is that an accused absconder of Section 376 IPC (rape) who disobeys and violates the directions in a warrant or proclamation, issued by a Court can not be declared “proclaimed offender”. This concern is not addressed by the Delhi High Court in Sanjay Bhandari. Non- inclusion of certain offences in Section 82(4) may be a ground to challenge the constitutional validity of such exclusion, but this cannot be a reason to nullify the spirit of Section 82(4) which expressly limits its scope to certain offences.