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
to summons; Part B
relates to warrant of arrest, Part C
proclamation and attachment; and Part D
relates to other rules regarding
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:
(i)(a) it shall be publicly read in some conspicuous place of the town or
village in which such person ordinarily resides;
(b) 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
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) 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
- 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
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 Procedure, 1973.
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
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 v/s State of Gujarat, 2004 Cri. L. L 3651].
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
Issuance of Non-bailable Warrant of Arrest is a Pre-requisite for issuance of
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 (i) escaped convict,
(ii) proclaimed offender, or (iii) against any person who is an accused of a
non-bailable offence and is evading arrest. A person 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 v/s State, 2002 Cri. L. J 1284].
Simultaneous 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
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
v/s 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 v/s 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 v/s. 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
- it is considered that the person could harm someone if not placed into
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.
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.
Without 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
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 resides. There is a
requirement of fixing a copy of the proclamation at some conspicuous part of the
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 offender.
The Section 82 is a penal clause, making the accused susceptible to punishment
under Section 174-A of IPC. In this backdrop the procedure enacted under Section
82 has to be followed strictly. When 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.
When 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 nature. In
this regard it is necessary to refer a judgment of Hon'ble Supreme Court.
The Supreme Court in the case of [Securities and Exchange Board of India v/s Gaurav Varshney & Another reported in (2016) 14 SCC 430] (Para 32.5) held as
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 him 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 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 in the eyes of law.
The provisions of Section 82 of the Code of Criminal Procedure 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 sub-section (1).
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.
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 v/s 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 order itself.
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 Supreme Court, in the context of service of summons under the Civil
Procedure Code, 1908, in the case of [Auto Cars v/s. 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 5 of the Code of Civil Procedure, 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 the Hon'ble Supreme
Court in the case of [State of Madhya Pradesh v/s. 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 person:
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.
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 - High Court of Judicature,
Email: [email protected], [email protected]