In a most significant and path breaking development with far reaching consequences, the Delhi High Court has as recently as on 28 June, 2021 in a brief, brilliant, balanced and bold judgment titled Sunil Tyagi vs Govt of NCT of Delhi & Anr in CRL.M.C. 5328/2013 & CRL.M.C.4438/2013 has commendably, cogently and convincingly issued detailed guidelines to be followed while declaring a person as a proclaimed offender so as to ensure that the process under Section 82 and 83 of CrPC is not issued in a routine manner and due process of law is followed. The directions also mention detailed mechanism for early apprehension of such proclaimed offenders including a direction that a Digital Surveillance System shall be placed by the Delhi Police by giving access to specific departments for tracking such proclaimed offenders. This was the crying need of the hour also!
Needless to say, it also must be mentioned here that a Single Judge Bench of Delhi High Court comprising of Justice JR Midha issued detailed guidelines after observing very forthrightly that, “This Court is of the view that declaring a person as a Proclaimed Offender leads to a serious offence under Section 174A IPC which is punishable for a period upto 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law is followed.” In addition, the Bench also envisaged that, “The second important aspect is that once a person has been declared as a Proclaimed Offender, it is the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174A IPC.” No doubt, this is inevitable also and must be done accordingly so that the proclaimed offender is brought to book and law takes its course in the right direction!
To start with, this latest, learned, laudable and landmark judgment authored by a Single Judge Bench of Justice JR Midha of the Delhi High Court sets the ball rolling by first and foremost dwelling on justice and putting forth in para 1 that, “The requirements of justice give an occasion for the development of new dimension of justice by evolving juristic principles for doing complete justice according to the current needs of the Society. The quest for justice in the process of administration of justice occasions the evolution of new dimensions of the justice. J.S. Verma, J., in his Article “New Dimensions of Justice”, (1997) 3 SCC J-3 observed that: ―
…Justice is the ideal to be achieved by Law. Justice is the goal of law. Law is a set of general rules applied in the administration of justice. Justice is in a cause on application of law to a particular case. Jurisprudence is the philosophy of law. Jurisprudence and Law have ultimately to be tested on the anvil of administration of justice. ‘Law as it is’, may fall short of ‘Law as it ought to be’ for doing complete justice in a cause. The gap between the two may be described as the field covered by Morality. There is no doubt that the development of the law is influenced by morals. The infusion of morality for reshaping the law is influenced by the principles of Equity and Natural Justice, as effective agencies of growth. The ideal State is when the rules of law satisfy the requirements of justice and the gap between the two is bridged. It is this attempt to bridge the gap which occasions the development of New Jurisprudence.
The existence of some gap between law and justice is recognized by the existing law itself. This is the reason for the recognition of inherent powers of the court by express provision made in the Code of Civil Procedure and the Code of Criminal Procedure. The Constitution of India by Article 142 expressly confers on the Supreme Court plenary powers for doing complete justice in any cause or matter before it. Such power in the court of last resort is recognition of the principle that in the justice delivery system, at the end point attempt must be made to do complete justice in every cause, if that result cannot be achieved by provisions of the enacted law. These powers are in addition to the discretionary powers of courts in certain areas where rigidity is considered inappropriate, e.g., equitable reliefs and Article 226 of the Constitution. …””‖
To put things in perspective, the Bench then lays bare in para 2 that, “The petitioners in both these cases were declared as Proclaimed Offenders without following due process of law. In CRL. A. 5328/2013, the learned Magistrate declared the petitioner as a proclaimed offender without satisfying himself as to the factum of service of notice upon the petitioner as respondent no. 2 was unable to furnish the complete address of the petitioner and the notices were not sent to the petitioner at the correct address. All addresses furnished by the respondent were found to be incorrect. In CRL. M. C. 4438/2013, the petitioner was declared a proclaimed offender but he was never served any summons/warrants. Vide judgment dated 07th January, 2021, this Court allowed the both petitions and quashed the impugned orders declaring the petitioners as “Proclaimed Offenders”.”
It is worth mentioning here that the Bench then points out in para 3 that, “During the course of the hearing dated 27th November, 2013, Mr. Gopal Subramaniam, learned senior counsel present in Court in some other case pointed out that the orders under Section 82 of the Code of Criminal Procedure (hereinafter referred to as CrPC or the Code) were passed in a routine manner and guidelines are necessary to ensure that orders under Sections 82 and 83 CrPC are passed after following due process of law. It was suggested that guidelines be laid down by this Court in this regard.”
What next ensues is then stated in para 4 that, “Vide order dated 07th March, 2014, Mr. Surinder S. Rathi, Registrar, Delhi High Court, who was then posted in Delhi State Legal Services Authority (DSLSA) and had done extensive research on the subject, was requested to submit his research papers. Mr. Rathi submitted his research papers along with the draft of the suggested guidelines. As the matter progressed, Mr. Rathi submitted his first report which was considered by Delhi Police as well as CBI and after thorough deliberations, he submitted his Final Report before this Court. Mr. Rathi in his report has dealt with the provisions relating to the declaration of a Proclaimed Offender at the stage of investigation as well as trial and post conviction. Mr. Surinder S. Rathi has also shared a Research Paper titled “Unified Criminal Justice System (UCJS)”. UCJS aims at achieving a unified digitization of criminal investigation system right from the stage of registration of FIR and investigation till up to trial and appeal along with seamless exchange of data between duty holders including Police, Judiciary, Prisons, Prosecution, Forensics, Legal Services and others, at all stages.”
To be sure, the Bench then specifies in para 6 that, “Vide order dated 21st November, 2014, this Court directed Delhi Police as well as CBI to file the status reports with respect to the Proclaimed Offenders. Delhi Police and CBI have filed their respective status reports. As per the status report of Delhi Police, 18,541 persons have been declared Proclaimed persons out of which 6000 Proclaimed offenders were accused of heinous crimes. As regards to CBI, 820 persons were declared as Proclaimed persons as on 31st December, 2014 out of which 184 Proclaimed offenders and 193 Absconders were arrested.”
While continuing forward, the Bench then observes in para 7 that, “Vide order dated 31st July, 2019, Delhi police and CBI were directed to file fresh status reports. As per the fresh status reports of the Delhi Police, number of Proclaimed persons have increased to 26,532 as on 31st September, 2019 out of which 3826 Proclaimed offenders have been arrested, prosecution has been launched against 1601 Proclaimed offenders and properties of 28 Proclaimed offenders have been attached. As regards CBI, further 793 accused persons have been declared as Proclaimed offenders between 01 st January, 2015 to 31st October, 2019 out of which only 68 Proclaimed offenders have been arrested, properties of 21 Proclaimed offenders have been attached and prosecution has been launched against 2 Proclaimed Offenders under Section 174A IPC.”
Going ahead, the Bench then notes in para 8 that, “Vide judgment dated 07th January, 2021, this Court directed Delhi Police as well as CBI to constitute an Internal Committee to formulate the suggestions with respect to the Proclaimed Officer. Delhi Police as well as CBI have complied with the orders and have submitted their reports contouring their suggestions with respect to Proclaimed Offender.”
Be it noted, the Bench then minces just no words to hold in para 9 that, “This Court is of the view that declaring a person as a Proclaimed Offender leads to a serious offence under Section 174A IPC which is punishable for a period upto 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law is followed. The second important aspect is that once a person has been declared as a Proclaimed offender, it is the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174A IPC.”
As a corollary, the Bench then clearly holds in para 10 that, “This Court considers it necessary to issue directions in this regard in exercise of inherent powers under Section 482 CrPC read with Section 483 CrPC and Article 227 of the Constitution. Section 482 of the Code of Criminal Procedure empowers this Court to make such orders as may be necessary to secure the ends of justice in exercise of the inherent powers. Section 483 of the Code of Criminal Procedure, 1973 casts a duty upon every High Court to exercise its continuous superintendence over the Trial Courts to ensure that there is an expeditious and proper disposal of cases. Article 227 of the Constitution also confers on this Court the power of superintendence over all subordinate courts in relation to which it exercises jurisdiction. The paramount consideration behind vesting such wide power of superintendence in this Court is to keep the path of justice clear of obstructions which might impede it. It is the salutary duty of this Court to prevent the abuse of the process, miscarriage of justice and to correct the irregularities in the judicial process.”
Simply put, the Bench then specifies in para 382 that, “The purpose of proceeding under Sections 82 and 83 CrPC is to secure the presence of the person. Depending on the nature of the offence, the person absconding or concealing himself may be declared as a ‘Proclaimed Person’ or a ‘Proclaimed Offender’ under Section 82(2) CrPC.”
In simple words, the Bench then says in para 383 that, “Once the Court is satisfied 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, then such Court can issue a proclamation against such a person.”
Interestingly enough, the Bench then reveals in para 384 that, “When the Code was initially enacted, for the purpose of Section 40(1)(b) CrPC a ‘Proclaimed Offender’ was defined as including a person proclaimed as an offender by any Court to which the Code does not extend for commission of offences in the territories to which the Code extends which are punishable under Sections 302, 304, 382, 392-399, 402, 435, 436, 449, 450 and 457- 460 of IPC while Section 82 CrPC was limited to declaration of a ‘Proclaimed Person’.”
While dwelling on the amendments made, the Bench then points out in para 385 that, “Section 82 CrPC was subsequently amended vide the Criminal Amendment Act 2005 w.e.f. 23rd June, 2006 to include sub-sections (4) and (5) which provide for declaration of a ‘Proclaimed Offender’. As per Section 82(4) CrPC, a Proclaimed Person under Section 82(1) CrPC who fails to adhere to the proclamation and is also an accused of offences under Section 302, 304, 364, 367, 382, 392-399, 400, 402, 436, 449, 459- 460 of IPC may be declared as a ‘Proclaimed Offender’.”
Quite rightly, the Bench then enunciates in para 386 that, “The procedure for declaration of a ‘Proclaimed Person’ and a ‘Proclaimed Offender’ as stipulated in the Code of Criminal Procedure, comprises of the following steps:
(i) Pre-requisites to issuing a Proclamation under Section 82(1) CrPC – A proclamation may only be published directing that the ‘Proclaimed Person’ appear at a specified time and place not less than 30 days from the date of publication, once the Court is satisfied that:
(a) A warrant of arrest has already been issued and all possible attempts to execute the warrant have been made;
(b) Subsequent to a warrant having been issued, the person is absconding or concealing himself in a manner to avoid execution of the warrant.
(ii) Enquiry to ensure that warrant of arrest has been issued and all efforts to execute the same have been made by the Police Officer – Prior to issue of proclamation, a warrant as per the Second Schedule, Form No. 2 or Form No. 9 of the Code must have been issued.”
As we see, the Bench then stipulates in para 387 that, “Procedure for Publication of the Proclamation Section 82(2) CrPC –As per section 82(2) CrPC, the proclamation must be read in some conspicuous place of the town or village in which the person resides. It shall also be affixed to some conspicuous part of the house in which the person resides or to some conspicuous place of the town or village. Further, a copy of the same must also be affixed to some conspicuous part of the Court house. The Court may also direct a copy of the proclamation to be published in a daily newspaper circulating in the place is which such person ordinarily resides. The terms of Section 82 CrPC are mandatory and a proclamation cannot be issued without first issuing a warrant of arrest.”
Guidelines for Warrants of Arrest at Investigation Stage
Simply put, let us now dwell para by para on the different guidelines laid down by the Bench and they are as follows: –
405. NBW against accused evading arrest – The Investigating Officer may apply to a Magistrate for issuance of warrant of arrest where the offence is cognizable, non-bailable and the accused/suspect is evading his arrest.
406. Investigating Officer to disclose efforts made to arrest – Before applying for warrant, the Investigating Officer shall show the efforts made to arrest the accused.
407. Address on the NBW – The Investigating Officer shall show that the accused is ordinarily residing at or was very recently residing at some address verified by the Investigating Officer and that the accused is not available at that address due to his deliberate intention to avoid the arrest.
408. No NBW on mere absence from house – No warrant shall be issued against an accused merely on the ground that he is not available to the Investigating Officer/Police for joining the investigation.
409. Investigating Officer to share material connecting the accused –The Investigating Officer shall share the material collected by him during investigation before the Court on the basis of which the accused is connected to the crime.
410. Affidavit of the police officer – The police shall file an affidavit disclosing the date, time and mode of service as well as the attempts made to search and identify the accused.
Guidelines for Warrants of Arrest at Trial Stage
411. Abscondance during Trial more serious – At the stage of trial, the accused is normally on bail. The abscondance during trial is more serious than abscondance during investigation as the accused has already crossed the stage of investigation and has been summoned by the Court to face trial and if the Charge(s) has/have been framed, the finding of existence of prima facie case against the accused is on record.
412. Mere non-appearance sufficient – Mere non-appearance of accused without any justified reasons is sufficient justification for issuance of warrants of arrest including NBW by the Court.
413. Court to decide exemption plea – If any authorized person is present before the Court on behalf of any accused and moves an application to show the reasons for non-appearance of the accused, the Court shall decide the application in accordance with the law. Guidelines for Verification of address(es) of the accused by the police at the stage of Summons/Warrants/Arrest/Surrender.
414. Physical verification of address of accused – The Investigating Officer shall ensure the verification of the address of the accused before or after his arrest or while seeking his arrest warrants from the Court.
415. Ratification of address of accused by neighbours during verification – The Investigating Officer shall record in the case diary the name of at least two respectable persons of the locality of the accused with their contact details like addresses and telephone who ratify that the address of the accused mentioned in the arrest memo or the applications for seeking warrants of arrest of the accused is correct and complete and it belongs to the accused.
416. Ascertain permanent address or additional address of accused with verification – The Investigating Officer shall ascertain the additional addresses of the accused viz. the permanent or the native place address and if addresses are located in other States, the same shall be verified through a subordinate or by the local police of such address disclosed.
417. Append photograph of the dwelling unit of the accused – The Investigating Officer shall take photographs of the dwelling unit of the accused which is shown/claimed to be the address of the accused. In case the Investigating Officer has an internet facility at the Police Station, he shall take the help of printouts of internet maps like Google Maps so as to show the specific location of the house.
418. Documentary proof of address of accused – The Investigating Officer shall collect documentary proof of the address disclosed by the accused and append the same with the Chargesheet.
419. Documentary proof of tenanted premises of the accused – In case an accused is a tenant in the property, a copy of the rent deed/rent receipt or a plain paper declaration by the landlord would be a sufficient compliance of this requirement.
420. Mandatory registration of all property owners/landlords who let their residential/ commercial or industrial property on rent – Delhi being the national capital attracts thousands and lakhs of inbound settlers. The number of crimes committed by this floating population is alarmingly high. Also, the heightened national security scenario demands repeated notification of compulsory Tenant verification drives by Delhi Police. This can be done in a simple online format and also through offline procedure. This would, upon its linkage to Aadhaar data bank, rule out frequent incidents of abscondance during criminal trials.
421. Disclosure of name and address of three blood relatives of the accused – At the time of arrest, the accused shall share names of at least three blood relatives with their details like address and contact numbers and the nature of the relation.
422. Ascertain mobile and landline connection/email address of the accused – The Investigating Officer shall ascertain all mobile and landline connections issued in the name of the accused/suspect, and/or any identity cards issued in the name of the accused/suspect so as to enable them to establish contact with the accused/suspect. Details such as email address of the accused/suspect wherever available shall also be included in the arrest memo.
423. Ascertain workplace details and address of the accused – The Investigating Officer shall ascertain the work profile/job profile of the accused and shall obtain the complete address and details of his place of work/employer with other contact details.
424. Ascertain details of the head office of the employer of the accused – In case the accused is found to be working in a Government/Private employment, the address of the Head Office of his employer shall be obtained apart from requiring such Employer to share with the Police and Court in case there is a change of place of employment or termination or removal of accused from employment.
425. Documentary proof of workplace details along with photograph – The Investigating Officer shall obtain a documentary proof of the place of work of the accused and shall record it in the charge sheet as an address where due service can be effected. Photograph of such work place shall also be obtained.
426. Investigating Officer to collect the relevant details of the accused in terms of the format attached hereto as Annexure A – The Investigating Officer shall collect the relevant particulars relating to the complete residential/permanent address of the accused, contact details including telephone/mobile numbers and email addresses, social media accounts etc. The Investigating Officer shall fill up the performa attached hereto as Annexure A during the investigation.
427. Modification of arrest memos in terms of UID/Aadhaar particulars – Vide Notification No.F.13/13/98/HP-I/ESTT.55-74, dated 05th January, 2001, Lt. Governor, Delhi while exercising powers under Section 147 0f Delhi Police Act, 1978, notified an Arrest Memo Proforma proposed by NCRB, Ministry of Home, Government of India.
428. Accused to share photograph, mobile & documentary IDs – At the time of arrest or soon thereafter, the police shall collect the photograph, mobile and landline number, email ID, all Social Networking accounts like Facebook, Instagram, LinkedIn, Twitter and IT Communication tools and copies of at least two documents namely Aadhar Card, Passport, PAN Card, Bank Account, Credit card, Ration card, Electricity bill, Landline telephone bill, Voter I.D. Card, Driving Licence from the accused.
429. Accused and surety to inform police and Court of changed address/mobile number – In case of grant of bail, it shall be mandatory for every accused and surety as a condition for grant of bail that, both the accused and the surety shall inform the police as well as the Court granting the bail about the change of their residential address and/or mobile number/ contact details while the accused is on bail.
430. Mandating disclosure and filing of documents in case of anticipatory bails as well as regular bails before the hearing – The concerned area Magistrate/Court hearing the Bail application shall ensure that the accused shares all the particulars mentioned in Annexure B.
431. Area Magistrate to ensure compliance of all guidelines relating to arrest – The concerned area Magistrate/Court hearing the application shall ensure that the above guidelines have been duly complied with by the police. Guidelines for cases instituted on private criminal complaints.
432. Supply of addresses and the documentary proof of such address of accused – The complainant shall share all available addresses of the accused known to him i.e. current/temporary/ permanent and workplace. The complainant shall file documentary proof of the address of the accused, if available.
433. Declaration from complainant – The complainant shall state on oath in his affidavit that the address of the accused in the complaint is true and complete to the best of his knowledge.
434. Additional addresses to be shared by Accused – Post entering of appearance by the accused, the accused shall disclose additional addresses other than those mentioned in complaint to the Court with address proof.
435. Accused to furnish name and address of three of his relatives – In complaint cases, accused shall furnish name, address, relation and other details of his three relatives for future communication. However, service of summons to those addresses may not be treated as due service under Section 64 CrPC.
436. Photograph and identity proof of the accused and surety – The photograph and the identity proof of the accused and surety to be affixed on the bail bond.
437. MLAT with Foreign Countries – In case any criminal complaint or in a case filed by Police, where the accused is alleged to be in a foreign country, the Court shall satisfy whether India has a Mutual Legal Assistance Treaty (MLAT) or any other similar Treaty with such country and summons shall be issued under the applicable formats/guidelines.
Guidelines for conditions to be imposed at the time of granting bail
438. At the time of grant of bail, the Court shall direct the accused to (i) disclose the address where they ordinarily reside or any other address, (ii) share a copy of their Government ID proofs such as Aadhar, PAN Card, driving license, Voter ID, Ration card etc.
439. The Courts while granting bail can impose the following conditions to ensure the presence of accused in the Court at the time of hearing:
(i) The accused to furnish his Mobile number along with the undertaking that he/she will always keep his mobile on active mode and share his live location with the Investigating Officer as and when requested/ ordered.
(ii) The Accused to make a video call to the Investigating Officer periodically.
(iii) The Accused to give all available addresses including permanent, current address or any other address where he may reside along with the proof thereof.
(iv) The Accused to give an undertaking that he/she will notify the Investigating Officer in case of change of address or mobile number.
(v) The accused to furnish a Government ID.
(vi) The accused to furnish PAN Card details along with his Income Tax Ward.
440. The accused shall furnish the relevant information relating to his residential/permanent address, details of his family, contact details including telephone/mobile numbers/email etc. in the format of Annexure B to the court at the time of grant of bail in addition to Form 45 CrPC.
Guidelines for Issuance of Proclamation
441. Proclamation only on deliberate concealment – The police has to submit a report before the Court that the person against whom the warrant was issued, has absconded or is concealing himself.
442. Concealment has to be deliberate – The concealment has to be deliberate for the purpose of avoiding arrest. The mere fact that the police could not find the accused, is not enough.
443. Mere non-availability at address is not sufficient – Mere non-availability at the address is not sufficient unless the concealment is deliberate to avoid arrest. 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.
444. Affidavit/Status Report of the Police – The police officer shall file an affidavit/status report to disclose the addresses and phone numbers/email addresses (if available) of the accused against whom the warrants had been issued and the reasons for inability to secure the presence of the accused before the Court.
445. Pre-requisites to the issuance of a proclamation – Prior to issuance of a proclamation under Section 82(1) CrPC,
(i) The police officer may file an Affidavit/Status Report disclosing:
(a) All available addresses and phone numbers/email addresses (if available) of the person against whom the warrant has been issued along with proof of the said addresses, phone numbers/email addresses and any other details available in the information sheet with underlying documents demonstrating the same;
(b) particulars of proof of service of the arrest warrant at the said address (i) by post; (ii) by hand (iii)mobile number, (iv) email address (if any) and (v) service on a family member/neighbor along with credible proof of the same;
(c) In the event warrant has been affixed on a conspicuous part of the house where the person ordinarily resides, town/village/ courthouse, the police officer must annex a picture showing that warrant has been affixed in such manner along with his affidavit. The picture must be taken in a manner that makes it clear to the Court that the warrant has in fact, been affixed at the said house;
(d) Reasons for inability of the police officer in securing presence of the person against whom warrant is issued; (ii) The Court must pass an order dealing with the contents of the Affidavit/Status Report and reasons given by the police officer for arriving at a conclusion that the person has absconded or is concealing’ himself or reasons for inability of the officer in securing presence of the person.
446. Court to record satisfaction – Under Section 82 CrPC, the Court issuing proclamation shall record to its satisfaction that the accused had absconded or concealed himself. The expression ‘reason to believe’ in Section 82 CrPC means that the Court has to be subjectively satisfied from the materials before it that the person has absconded or has concealed.
447. Court to examine executing officer – Before issuing a proclamation, the Court shall examine the officer with respect to the measures taken by him to execute the warrants.
448. Issuance of arrest warrant a pre-condition – Issuance of an arrest warrant and the accused found absconding, are pre-conditions for issuing proclamation.
449. NBW and Section 82 CrPC not to be issued together – Simultaneous issuance of both the processes, namely, warrant of arrest and proclamation is ex-facie contradictory, since it is only after the former that the latter can be issued where the concerned person has absconded or is hiding.
450. Pre-requisites to the publication of a proclamation under Section 82(2)(ii) CrPC – Prior to publication under Section 82(2)(ii) CrPC the Police Officer may be mandatorily required to file an Affidavit disclosing: A picture showing that proclamation has been affixed in a conspicuous place of the house where the person resides. The picture must be taken in a manner that makes it clear to the Court that the proclamation has in fact, been affixed at the said house; The Court must pass an order dealing with the contents of the Affidavit and statement of the process server along with its reasons for directing publication under Section 82(2)(ii).
451. Publication by all three modes essential – Publication by all three modes namely (i) public reading in some conspicuous place of the town/village in such person ordinarily resides; (ii) affixation at some conspicuous part of the house or homestead and (iii) affixation at some conspicuous part of the court house are mandatory under Section 82(2) CrPC. The failure to comply with all the three modes of publication is to be considered invalid publication, according to law as the three sub-clauses (a) to (c) are conjunctive and not disjunctive.
452. Section 82 CrPC to be read as a whole – The three clauses (a), (b) and (c) of Section 82(2)(i) CrPC are conjunctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of sub-Section (2) is optional; it is not an alternative to clause (i). The latter clause is mandatory.
453. Photograph of the affixation of proclamation – Prior to the publication under Section 82(2)(i) CrPC, the police shall file an affidavit along with the photographs of the affixation of proclamation on the conspicuous part of the resident of the accused. The police officer shall fill and submit performa in the format of Annexure C before the court at the stage of seeking proclamation.
454. Upon publication of the proclamation under Sections 82/83 CrPC, copy of that newspaper be sent by the newspaper agency by post to the address of the accused as being done in Civil matters under Order 5 Rule 10 of CPC.
Guidelines for Enhancing the Efficiency in Execution of Proclamations
455. Mandatory affixation of photograph of the accused on the Arrest Memo – The modified Arrest Memo shall also have a mandatory column for affixation of front and side pose photograph of the arrestee. Inclusion of photograph would not only bring credibility to the Arrest Memo but would also come handy in the future proclamation proceedings, if any. Also, once included in the Data Bank of National Crime Record Bureau (NCRB), the photo can be used to identify the repeat offender with the help of latest software tools which use face recognition techniques like super imposition etc.
456. Inclusion of all mobiles and landline connections of the accused in the Arrest Memo – The Arrest Memo shall carry all mobile and landline numbers of the accused apart from such contact numbers of his/her parents, spouse or any other first-degree relation for future reference purposes. Availability of mobile phone number of the suspect/ arrested accused would come handy in establishing communication with him/her by the Investigating Agencies or the Courts.
457. Inclusion of all other particulars of Information Technology Communication tools like Email I.Ds, Facebook accounts, LinkedIn in accounts and Twitter accounts etc. of the accused in the Arrest Memo – Another improvement which can be brought into the modified Arrest Memo is inclusion of particulars of other new age modes of communications namely Email I.Ds., Facebook accounts, LinkedIn accounts, Twitter handles, etc. These days social media tools can be used for tracking and tracing an accused in case of any exigency akin to abscondance.
458. Inclusion of all the Bank Account particulars and Credit/Debit Cards particulars of the accused in the Arrest Memo – Include all the Bank Accounts particulars and Credit/Debit Cards particulars of the arrestee in the Arrest Memo. This would go a long way in tracking the accused if he absconds. Any usage or operation of Bank account or the Credit Card, when put under surveillance, would get registered and alarm the security agencies.
459. Execution of Section 82/83 CrPC processes to be done by an officer not below the rank of S.I., since it is now a cognizable offence, under 174A IPC – Since abscondance and declaration as a Proclaimed Person/Offender has now become a cognizable and non-bailable offence, it is imperative that the execution of Sections 82 and 83 CrPC is done by an officer not below the rank of Sub-Inspector.
460.Mandatory photography and video recording of Section 82/83 CrPC proceedings and attachment of the video file with the prosecution material – Another tool which can add credence to the proclamation/service proceedings is Photography as well as Videography of the proclamation/service proceeding. This would rule out instances where it is found that execution police official has prepared the publication report without actually visiting the house of the accused. A series of photos and a video of the house of the accused during publication of the proclamation, will rule out the instances where accusations are made that no visit was paid by the execution officer at the address of the accused.
461. RWAs to keep track of floating population in their localities – The civil society be involved in tracking the floating population of their locality. Schemes like Bhagidari can be utilized for this propose. Residential Welfare Associations/Market Associations can keep track of floating population in their locality.
Guidelines for Early apprehension of Proclaimed Offenders/Proclaimed Persons
462. Recording of Certain Identifier Details of Accused – There is a need for accurate recording of certain identifier details of accused and suspects, especially in crimes of higher gravity, either when they are joining investigation or attending courts for enabling effective tracing in case they become absconders or are declared Proclaimed Persons/Offenders at a later point in time. A suggestion on possible details that could be voluntarily received from them at a suitable stage either during investigation or while attending court to the extent possible include:
(i) Good quality photographs from multiple axes.
(ii) Fingerprints recorded digitally.
(iii) Name, parentage, date of birth, native place and last known address.
(iv) Copies of Photo Identity documents like passport, EPIC card, proof of address etc.
(v) Identification marks and general descriptors like height, prominent facial looks etc.
(vi) Communication details: e-mail ID, mobile number, landline number etc.
(vii) Social Media account details if any: Facebook, WhatsApp LinkedIn, Twitter etc.
(viii) Details of close family members and social acquaintances.
(ix) Financial accounts details: Bank accounts, PAN card number etc.
463. Making Public the name, details and pictures of Proclaimed Persons/ Offenders – The names, addresses and pictures of the Proclaimed Persons/Offenders be made public on different government websites i.e. Delhi Police, NCRB, CBI and other States Police. The data of the Proclaimed Persons/Offenders in cases involving the Delhi Police, as is already available on ZIPNET, should be made accessible to the public. Details of Proclaimed Persons/Offenders be also published on the website of the District Courts.
464. Search Option for tracking Proclaimed Persons/Offenders – Police websites shall carry a simple search box option where details of each Proclaimed Persons/Offenders can be ascertained by simply searching them with their names or other available particulars. This will enable even the citizens to arrest the Proclaimed Persons/Offenders under Section 43 CrPC.
465. Publicly Searchable Standardized National Search Database of Proclaimed Persons/Offenders – Availability of a publicly accessible database on Proclaimed Persons/Offenders which can be easily checked and searched by the general public can be very useful in eliciting public cooperation in receiving critical timely information on Proclaimed Persons/Offenders. The digital platform may have easy user-friendly online mechanism for public to give tip-offs or useful information on Proclaimed Persons/Offenders for assistance of law enforcement agencies.
466. Digital Police Portal – The “Digital Police Portal” launched by MHA in 2018 is connecting all CCTNS based services as well as different Apps for police are available on this single central portal. Details of Proclaimed Persons/Offenders are publicly accessible on this platform using the following link:
467. The existing database may be made more easily accessible and provisions for public to give critical inputs or tip-offs using the digital platform may be considered. Further the database may be made available to Financial Intelligence Unit to develop suitable Red Flag Indicators to track financial transactions by Proclaimed offenders and provide Suspicious Transaction Reports that may help identify Proclaimed Persons/Offenders.
468. Digital Surveillance of Proclaimed Persons/Offenders – Delhi Police shall put in place a Digital Surveillance System whereby it shall be given a “See only‖ access to all Digital Data of the following departments to track the Proclaimed Persons/Offenders. Once given access, there are software which can as Web Crawlers search out the Proclaimed Persons/Offenders out of large data bases. The threat perception from these Proclaimed Persons/Offenders roaming around in Delhi fearlessly is immensely grave. The details of the departments are as under:
(i) All Nationalized and Private Banks Saving Account Holders data
(ii) All Nationalized and Private Banks Loan Account Holders data
(iii) All Nationalized and Private Banks Credit Cards Holders Data
(iv) All PAN Card holders Data
(v) All MTNL / Private Landline holders Data
(vi) All MTNL / Private Mobile Holders Data
(vii) All Passport Holders Data
(viii) All Govt. and Private Insurance Holders Data
(ix) All Aadhaar Card holders Data
(x) All Voter cards holders data
(xi) Transport Department, Driving Licence and Vehicle Registration Data
(xii) Registrar of Death Registration Data
469. Following Financial Transactions of Proclaimed Persons/Offenders – With increase in reliance on electronic commerce, e-banking and payment gateways, it’s become all the more important to identify financial trails of Proclaimed Persons/Offenders and the clues generated from such analysis of financial trails with close contacts can be critical in tracing of Proclaimed Persons/Offenders. The use of database of Proclaimed Persons/Offenders by FIU-IND to consider incorporation of suitable RFIs (Red Flag Indicators) may help with identification of financial trails of Proclaimed Persons/Offenders.
470. Keep vigil on Social Media and Websites – The Digital Surveillance Team of Delhi Police and CBI shall also keep vigil on social media and websites like Facebook, WhatsApp, LinkedIn and Twitter etc. for searching the accused/Proclaimed Persons/Offenders with enhanced technological tools. The accused/Proclaimed Persons/Offenders can even be tracked by their photographs.
471. All Police Stations to prominently display the names and pictures of the Proclaimed Persons/Offenders – All the Police Stations shall prominently display the names and pictures of the Proclaimed Persons/Offenders to make public aware and report the matter to the police or arrest the Proclaimed Persons/Offenders.
472. Display a list of Proclaimed Persons and Offenders at a conspicuous in the police station – The SHO concerned shall ensure that a list of all Proclaimed Persons and Offenders who are absconding, in cases registered in their concerned police station is displayed on the notice board in the police station.
473. Use of Bharat Map of NIC to flag addressees of Proclaimed Persons and Offenders – Creation of the 3D map of all the Police Stations areas in Delhi with licensed or open source Google maps type mapping with the help of National Informatics Centre (NIC) which will have a real time pop-up display of all the Proclaimed Persons and Offenders, convicts and other accused in a locality. The pop-up shall display the image, name, address and other details in mobile/tab/pad device or laptop or desktop for usage by Police, Intelligence agencies and Judiciary only.
474. Assigning unique digital IDs to pre-verified addresses – On the lines of PIN codes allotted by Postal Department to the entire length and breadth of our nation whereby a particular six digit PIN Code identifies a fixed area, this methodology can be further used to award a Unique Address Code (UAC) whereby with the help of Postal Department and Municipal Corporations having the house records, pre-verified six digit unique code for each address can be created. This code can be used by the police as well as by the Judiciary for cross checking of the address for verification purposes at the time of arrest/surrender and acceptance of bonds.
475. Linking police promotions/rewards to the arrest of Proclaimed Persons/Offenders – Linking police promotions/rewards to the arrest of Proclaimed Persons and Offenders would motivate the police officers to arrest the proclaimed offenders.
476. Central data base of Proclaimed Persons and Offenders – A central data base of the proclaimed offenders be prepared similar to the Crime and Criminal Tracking Network & System (CCTNS) for sharing information between the state police with respect to the Proclaimed Persons/Offenders.
477. If accused is suspected to be abroad/suspected to flee from the country – If accused is suspected to be abroad, a Red Corner Notice may be issued from INTERPOL against him or if the accused is suspected to flee from the country, Look Out Notice/Circular be also issued.
478. Use of INTERPOL channels if Proclaimed offender is suspected to be abroad – The Investigating Agency through the INTERPOL Liaison Officer contact National Central Bureau-New Delhi, CBI requesting issue of suitable INTERPOL Notice through IPSG for locating or tracing the Proclaimed Person/Offender abroad. In the modern technology era it has become very important for investigators to effectively utilize the digital footprints of Proclaimed Persons/Offenders to trace them. Investigators need to proactively look for leads and clues in social media, electronic communication platforms and open source information to search for Proclaimed Persons/Offenders.
479. Issuance of Look Out Circulars where the accused has left the country – Ministry of Home Affairs, Foreigners Division (Immigration Section) vide letter No.25016/10/2017-Imm.(Pt.) dated 22nd February, 2021 has issued detailed guidelines regarding issuance of LOCs for alerting all Immigration Check Points (ICP). Issue of Look Out Circulars in a timely manner can prevent escape of Proclaimed Persons/Offenders to foreign jurisdictions.
480. Impounding or Revocation of Passport as per The Passports Act, 1967 section 10(3)(h) – Steps should be initiated for impounding or revocation of passport of the Proclaimed Person/Offender. In the absence of impounding or revocation of passports, the Proclaimed Person/Offender would be at liberty to travel freely in international jurisdictions. Taking expeditious steps in this regard shall be a key step in curtailing scope for international movements of Proclaimed Person/Offender.
481. Restriction on issuing passports to those who are absconding – The Ministry of External Affairs shall not issue passport facilities to the absconding accused. The passport of such accused should be revoked under Sections 6 and 10 of the Passport Act, 1967.
482. Creation of a dedicated website containing particulars of all persons arrested or bailed in criminal offences – Our country is a world leader in software and hardware development. We can use the information technological tools by creating a database of all arrested criminals and also all those who are facing criminal prosecutions. This would not only be handy and easily accessible to all concerned specially security agencies but will also act as deterrence to the potential absconders. Such a data base can even be made accessible to the public so that the same can be used to verify the criminal antecedents or credentials of a person through a simple search process by private parties. Such a data bank can also help identify repeat offenders and serial offenders and can be an effective tool in efficient handling of crime.
483. Creation of a dedicated website for all persons against whom proclamation issued or who are declared Proclaimed Person/Offender – Likewise we can also use the IT tools by creating a database and a dedicated website of all absconders and Proclaimed Persons/Offenders. This would go a long way in bringing in discipline in criminal trials. Access to this tool would help in speedy trial of justice and help tracking the absconders. As of now there is no sure short mechanism whereby list of absconders or Proclaimed Persons/Offenders of a particular state can be easily accessed by police force from other States and Nations. Having a state-wise data bank apart from a national data bank of such absconders/ Proclaimed Person/Offender would help all stake holders in tracking such persons and bringing them to justice. Even otherwise, abscondance is a public information and as per law, an absconder/ Proclaimed Person/Offender can be arrested even by non-police, that is, a common citizen.
484. Launching of a Composite Proclaimed Persons and Offenders Website – There is an urgent need to create a dedicated website which contains data of all the details of Proclaimed Person and Proclaimed Offenders/ Absconders of each State / Union Territory in a consolidated way with details of the crime, address etc. It may also be integrated with the aforementioned CCTNS so that the efforts to trace Proclaimed Persons/Offenders are not only in States where the accused declared Proclaimed Persons/Offenders but also in the entire Nation and even the world.
485. Interlinking of governmental / institutional databases for instant real time verification – Evidently at the time of arrest, accused furnishes his/her permanent / temporary / work place address supported by identity documents like passport, Aadhaar Card, Driving License and like. Such documents are also furnished by the surety at the time of submitting Section 441 CrPC Surety Bond before the SHO / MM / Trial Court. There is a need to interlink the governmental / institutional databases with the help of Application Programme Interface (API) with CCTNS of Police and CIS of judiciary for instant verification of documents furnished in the course of investigation / trial. Such exercise has already been carried out and tested in at least three projects out of which one is eDAR National Dashboard.
· eDAR National Dashboard – Under the aegis of Artificial Intelligence Committee of Supreme Court, a decision was arrived at to use AI Tool SUPACE (Supreme Court Portal for Assistance in Court Efficiency) in various legal fields like criminal appeals, income tax matters, land acquisition cases, Negotiable Instruments Act complaints, and Motor Accident Claims. The eDAR Dashboard is developed in such a way that it seamlessly exchanges data with CCTNS of MHA, Vahan/Saarthi of MoRTH and IIBI of IRDA and would eventually be able to push eDAR to the Case Information System, CIS 3.2 of Judiciary. This networking will help instant verification of documents thereby saving thousands of man hours currently being utilised in verification of documents like DL / RC from other states.
486. Governmental/Institutional Databases may be interlinked with CCTNS/CIS – e-Governance Mission Mode Project of Government of India mandated all Ministries, Departments and Public Sector Undertakings to digitize their data and day-to-day working. Taking advantage of this digital revolution, in order to tackle the menace of accused/suspect absconding during the investigation/trial, there is need to interlink the criminal justice system with the available governmental/institutional databases. Lack of comprehensive cohesive initiative in this regard has led to spiralling of crime in the city state of New Delhi. Doubling of number of Proclaimed Persons from 13,521 as in March 2010 which has now reached more than 28,000 in the year 2021. The databases which can be interlinked with CCTNS of Police and CIS of judiciary include VAHAN, SARATHI of MoRTH; Aadhaar; Bank Accounts; Land records; Mobile Phone records; Passport; Insurance; Income Tax and like.
487. Creation of a dedicated Cell for Tracking and Arresting Proclaimed Persons/Offenders – Considering the fact that in the last around 10 years the number of Proclaimed Persons in Delhi has swelled to double from 13,500 in 2010 to 28,000+ in 2021, there is a need to create a dedicated cell for digital tracking and arrest of these Proclaimed Persons/Offenders. Such cells in other States and UTs can exchange real-time data to contain these outlaws. This will help restore law and order and will bring down spiralling crime.
488. Cases in which Evidence should be recorded in terms of Section 299 CrPC – In all cases in which an accused is absconding, except those of exceedingly trivial or petty nature or where special circumstances exist which make the procedure unnecessary or undesirable, the Court may consider recording evidence against the absconded offender under section 299 CrPC.
489. Mandatory to record reasons for proceeding under Section 299 CrPC – In order to render evidence recorded under section 299 CrPC admissible at future trial, it must be proved and put on record that the offender has absconded and that there is no immediate prospect of arresting him.
490. Invocation of Section 299 CrPC in case there are more than one accused – In cases where some of the accused are absconding and some are facing trial in the Court the evidence should first be produced to prove that these persons are absconding and that there was no immediate prospect of arresting them. The evidence of the witnesses should thereafter be recorded in the case against those present. Such evidence would be relevant against the absconders under section 299 CrPC, according to which on the arrest of the absconding accused, the deposition of the witnesses recorded in his absence may be given in evidence against him if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay or inconvenience which, under the circumstances of the case would be unreasonable. The last ground can easily be cited where a large number of prosecution witnesses have been examined in the absence of the absconding accused.
The relevant paras are as follows –
491. The law with respect to the declaration of a person as a Proclaimed Person/Offender is well settled. This Court has laid down the Guidelines to be followed by the Courts before declaring a person as a Proclaimed Person/ Offender. The Courts shall consider the Guidelines before declaring a person as a Proclaimed Person/Offender.
492. The Court, after declaring the person as a Proclaimed Person/Offender, shall direct the Police to trace and identify the movable and immovable properties of the Proclaimed Person/Offender and file the status report with respect to the assets of the Proclaimed Person/Offender. The Court shall thereafter proceed to attach the movable and immovable properties of the Proclaimed Person/Offender in accordance with the law.
493. After the declaration of a person as a Proclaimed Person/Offender, the Police is required to trace the Proclaimed Person/Offender and arrest him. This Court has laid down the Guidelines for early apprehension of the Proclaimed Persons/Offenders. The Court declaring a person as a Proclaimed Person/Offender shall direct the Police to take all necessary action for tracing the Proclaimed Person/Offender and file the Status Report with respect to the action taken by the Police.
494. All the Courts below are directed not to close the matter after declaring a person as a Proclaimed Person/Offender. Rather, the Courts shall direct the police to file the Status Report with respect to the efforts made to trace the Proclaimed Persons/Offenders; efforts made to trace or attach their movable/ immovable assets/properties and their prosecution in accordance with law. The concerned Courts shall monitor the action taken by the Police and shall issue such fresh directions as may be considered necessary. The Court may, in appropriate cases, record the evidence of the witnesses under Section 299 CrPC.
495. Although no time period is prescribed for prosecution of the Proclaimed Persons/Offender, this Court is of the view that the Proclaimed Offender be prosecuted under Section 174A IPC, if the Proclaimed Person/Offender does not surrender or is not traced out within a period of six months of being declared as a Proclaimed Person/Offender. 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.
496. All the Courts below shall send a quarterly compliance Report to the Registrar General. The Compliance Report shall give the number of Proclaimed Persons/Offenders declared by the Court; number of cases in which Proclaimed Persons/Offenders have been traced/arrested; number of cases in which assets of Proclaimed Persons/Offenders have been attached; and number of cases in which the accused have been prosecuted under Section 174A and/or under Section 229A IPC, as applicable and number of cases in which evidence has been recorded in Section 299 CrPC. In the event of non-compliance, the Registrar General shall place the Report before the ACR Committee of the Judicial Officer.
497. As per the status report of Delhi Police, there were 26,532 Proclaimed Persons and 3,826 Proclaimed Offenders as on 31st September, 2019. This number is increasing day by day as no concrete steps have been taken to trace the Proclaimed Persons/Offenders; and to attach their assets and to prosecute them. There appears to be the tendency of the Court as well as the Police to close the matter after the person is declared as a Proclaimed Person/Offender and the file is consigned to Record Room. This is a serious lapse considering that the criminal law which sets into motion with the filing of an FIR, comes to an abrupt end which is against the most basic tenets of justice and causes an irreparable injury to the entire society including victims.
498. Delhi Police as well as CBI shall create a Special Cell for tracing out the Proclaimed Persons/Offenders; for attaching their movable/immovable properties and for their prosecution. Delhi Police as well as CBI are at liberty to have a consolidated Special Cell. This Special Cell be created within a period of four weeks.
499. This Court is of the view that it would be appropriate and in the interest of justice to constitute a High-Powered Committee to supervise the implementation of Guidelines laid down by this Court relating to the Proclaimed Persons/Offenders. In view of the above, a Committee is hereby constituted comprising of the following members:
(i) Joint Secretary to be nominated by the Secretary, Ministry of Home Affairs.
(ii) Principal Secretary (Law), Department of Law, Justice & Legislative Affairs, Goverment of NCT Delhi.
(iii) Special Commissioner of Delhi Police to be nominated by Commissioner of Police.
(iv) Additional Director of CBI to be nominated by Director, CBI.
(v) Joint Director (CCTNS) to be nominated by Director General of Bureau of Police Research & Development (BPR&D).
(vi) Mr. Surinder S. Rathi, Officer of DHJS presently posted as Registrar and OSD to Hon’ble the Chief Justice of Delhi High Court, as a Convenor.
(vii) Mr. Kanwal Jeet Arora, Officer of DHJS presently posted as Member Secretary, DSLSA.
(viii) Mr. Shashikant Sharma, HOD, Inter-operable Criminal Justice System (ICJS), NIC.
(ix) Mr. Nikhil Goel, Standing Counsel for CBI.
(x) Mr. Sanjay Lao, Standing Counsel for Delhi Police. 500. The constitution of the Committee shall be appropriately notified by the Ministry of Home Affairs, Government of India within four weeks along with provisioning of necessary secretarial assistance.
501. This Court has issued various guidelines for early apprehension of the Proclaimed Persons/Offenders. All the Guidelines are important and need to be implemented. However, if all the Guidelines cannot be implemented immediately, the same may be implemented in a phased manner under the supervision of the above Committee.
502. The Committee shall convene the first meeting within four weeks and shall, after hearing the Delhi Police and CBI, 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. The Committee shall ensure that all the Guidelines are implemented in a phased manner within a period of eight months to one year.
503. The Committee shall also consider Unified Criminal Justice System, Research Paper filed by Mr. Surinder S. Rathi which contains valuable innovative suggestions for bringing in the much desired efficiency in the Criminal Justice System through intelligent digitization.
504. The Committee shall supervise the implementation of the Guidelines issued by this Court to be followed by Delhi Police as well as CBI. Delhi Police as well as CBI shall file the quarterly Status Report before the Committee giving the list of the Proclaimed Persons/Offenders, efforts made to trace out the Proclaimed Persons/Offenders, efforts made to trace and attach the movable and immovable properties of the Proclaimed Persons/Offenders and the prosecution under Sections 174A and 229A IPC. The first compliance report for the quarter 01st August, 2021 to 31st October, 2021 be filed by 15th November, 2021 and thereafter by 15th of each quarter. The same be considered by the Committee within four weeks thereafter. The Committee shall, after considering the compliance reports, issue fresh directions as may be considered necessary to implement the Guidelines.
506. This Court appreciates the exemplary work done by the Internal Committees of CBI as well as Delhi Police in terms of the directions issued by this Court on 07th January, 2021.
507. This Court appreciates the valuable and effective assistance rendered by Mr. Surinder S. Rathi, OSD-cum- Registrar to Hon’ble Chief Justice of High Court of Delhi, Mr. Nikhil Goel, Standing Counsel for CBI, Ms. Nandita Rao, Additional Standing Counsel for GNCTD, Mr. Dayan Krishnan, Senior Advocate, Mr. N. Hariharan, Senior Advocate, Mr. Vikas Pahwa, Senior Advocate; Mr. Rajshekhar Rao, Senior Advocate, Dr. L.S. Chaudhary, Advocate, Mr. Rajiv K. Garg, Advocate, and Prof. (Dr.) G.S. Bajpai, Vice Chancellor, NLU Patiala and former Professor of Criminology and Criminal Justice, National Law University, Delhi, Mr. Akshay Chowdhary and Ms. Anjali Agrawal, Law Researchers attached to this Court.
508. These petitions are disposed of. It is clarified that these cases have already been decided on merits.
509. Copy of this judgment be sent to the District Judges who shall circulate it to all the concerned Courts.
510. Copy of this judgment be sent to Delhi Judicial Academy to sensitise the judges about these Guidelines.
511. Delhi Judicial Academy shall upload this judgment on their website (http://judicialacademy.nic.in) as good practices of this Court.
Nothing more to add here! This extremely brilliant judgment really speaks for itself! I have quoted all the relevant paras even though could not quote all due to paucity of space!