Declaration as 'proclaimed offender' is restricted to specific IPC offences enumerated under Section 82(4) Cr.P.C.

In brief

The question

Whether the pendency of an anticipatory bail application prevents a court from proceeding with or declaring an accused as an absconder under Section 82 of the Cr.P.C.

The court held

The court partially allowed the petition by modifying the impugned order dated 12.10.2023.

It also directed

It held that while the petitioner was indeed evading the process of law, he could only be declared a "proclaimed person" and not a "proclaimed offender" because the charged offences are absent from the list in Section 82(4) Cr.P.C.

The court clarified that this modification does not interfere with any existing or potential actions against the petitioner under Section 174A IPC for failing to appear in response to the proclamation

01Facts

The petitioner was accused of offences under Section 376 of the Indian Penal Code (IPC) and Section 6 of the POCSO Act following an FIR registered on 14.06.2023

¶ 2, 11

After his initial anticipatory bail application was rejected on 20.06.2023, the police conducted multiple unsuccessful raids to locate him

¶ 3, 11

Non-Bailable Warrants (NBWs) were issued on 08.08.2023, followed by the initiation of proclamation proceedings under Section 82 of the Cr.P.C. on 18.08.2023

¶ 3

While these proceedings were active, the petitioner filed a second anticipatory bail application on 28.08.2023

¶ 4, 12

On 12.10.2023, the Sessions Court declared the petitioner a "proclaimed offender"

¶ 1, 4

The petitioner challenged this order, arguing that he was pursuing legal remedies (anticipatory bail) and that the alleged offences did not fall under the specific list provided in Section 82(4) of the Cr.P.C.

¶ 7, 10

02Issues

i.Whether the pendency of an anticipatory bail application prevents a court from proceeding with or declaring an accused as an absconder under Section 82 of the Cr.P.C.

¶ 10, 14

ii.Whether an accused charged with Section 376 IPC and Section 6 POCSO can be declared a "proclaimed offender" under Section 82(4) of the Cr.P.C., given these sections are not specifically enumerated in that sub-section

¶ 10, 17

03Law Applied

The court primarily applied Section 82 of the Cr.P.C., which governs the proclamation of absconding persons

¶ 18

It relied on the Supreme Court precedent in Srikant Upadhyay v. State of Bihar (2024), which established that filing an anticipatory bail application through an advocate does not constitute "appearance" and that, absent interim protection, pendency of such an application is no bar to Section 82 proceedings

¶ 14-15

Furthermore, the court applied the distinction between a "proclaimed person" and a "proclaimed offender" as settled in Sanjay Bhandari v. State (NCT of Delhi) (2018) and Avinash Singh v. State (2024), noting that the status of "proclaimed offender" is strictly reserved for those accused of offences specifically listed in Section 82(4) of the Cr.P.C.

¶ 20-21

Provisions in the judgment · 26 · Linked ones open on LawLens

Indian Penal Code, 1860 21 provisions

Section 174 Section 302 Section 304 Section 364 Section 367 Section 376 Section 382 Section 392 Section 393 Section 394 Section 395 Section 396 Section 397 Section 398 Section 399 Section 400 Section 402 Section 436 Section 449 Section 459 Section 460

Code of Criminal Procedure, 1973 Section 82 Section 83 Section 84 Section 85

Protection of Children from Sexual Offences Act, 2012 Section 6

04Reasoning

The court rejected the petitioner’s first contention, reasoning that the mere filing of successive anticipatory bail applications cannot be used as a ruse to evade arrest or stay proclamation proceedings.

¶ 13-15

Citing Srikant Upadhyay, the court noted that the petitioner failed to physically appear before the trial court by the returnable date of the proclamation (26.09.2023), and the pendency of a bail plea offered no legal immunity from being declared an absconder

¶ 13-15

Regarding the second contention, the court conducted a statutory examination of Section 82(4) Cr.P.C., which lists specific heinous offences (e.g., Sections 302, 392, 436 IPC) for which an accused may be declared a "proclaimed offender"

¶ 18-19

Since Section 376 IPC and Section 6 POCSO are not included in this exhaustive list, the court determined that the Sessions Court exceeded its jurisdiction by labeling the petitioner a "proclaimed offender" instead of a "proclaimed person"

¶ 22-23