An accused cannot be declared absconder without duly served Section 82 CrPC proclamation and proof of compliance.

The petitioners challenged the order dated 1 December 2017 passed in SC/ST Trial No. 127 of 2017, arising from SC/ST P.S. Case No. 3 of 1998, by which they were declared absconders and proceedings for issuance of a permanent warrant were directed.

The case originated from a complaint alleging that, on 20 November 1997, the accused removed food grains from the complainant’s PDS shop and committed offences under Sections 448, 380, 323 and 504 IPC and Section 3(i)(r) of the SC/ST (Prevention of Atrocities) Act.

After investigation, police submitted a chargesheet, and cognizance was taken on 14 August 2006.

According to the petitioners, they had been granted bail on 22 November 1998 and had not misused it; nevertheless, a bailable warrant was issued on 30 April 2007, followed by a non-bailable warrant on 20 July 2007, and proceedings under Sections 82 and 83 CrPC were initiated simultaneously on 7 September 2017.

On 1 December 2017, without a service report demonstrating execution of the process, the trial court declared both petitioners absconders.

1. Whether the trial court could simultaneously initiate proceedings under Sections 82 and 83 CrPC without recording the statutory conditions necessary for attachment of the accused’s property.

2. Whether the petitioners could be declared absconders merely on the basis of such proceedings, without proof that the warrants or proclamation had been duly served or executed.

3. Whether the order dated 1 December 2017 declaring the petitioners absconders was legally sustainable.

The Court applied Section 82 CrPC, which permits issuance of a proclamation only where a warrant has been issued and the Court has reason to believe that the person has absconded or is concealing himself so that the warrant cannot be executed; the proclamation must require appearance at a specified place and time not less than thirty days from publication.

Section 83 CrPC permits attachment of property after issuance of a proclamation, except that simultaneous attachment is permissible only where the Court is satisfied, on affidavit or otherwise, that the person is about to dispose of or remove the property from the Court’s jurisdiction.

Relying on Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, the Court reiterated that summons and bailable warrants should ordinarily be preferred, and non-bailable warrants must be issued judiciously after balancing personal liberty and societal interests.

It also relied on Serious Fraud Investigation Office v. Aditya Sarda, 2025 SCC OnLine SC 764, which affirmed that the Court has discretion to issue warrants but must exercise that discretion on the basis of the seriousness of the offence, the likelihood of voluntary appearance, and the possibility of evasion.

The Court found that the trial court’s order dated 7 September 2017 directed issuance of processes under Sections 82 and 83 CrPC simultaneously, without recording satisfaction of the exceptional conditions in the proviso to Section 83 concerning disposal or removal of property.

Further, the order dated 1 December 2017 merely stated that the legal process had been completed, but there was no service report or other material demonstrating that the warrants or proclamation had actually been served upon the petitioners.

In light of the safeguards governing warrants and proclamation proceedings, and the requirement of careful judicial application of mind emphasized in Inder Mohan Goswami and Aditya Sarda, the Court held that the declaration of the petitioners as absconders was procedurally defective and contrary to law.

The Court held that simultaneous initiation of proceedings under Sections 82 and 83 CrPC, absent the statutory justification for immediate attachment, and the declaration of abscondence without proof of due service, could not be sustained.

The trial record was directed to be returned to the court below along with a copy of the judgment.