Delhi HC Sets Aside NAFED Accused’s Proclaimed-Offender Status Over Unserved Australian Address And Charges Outside Section 82(4), But Philippine Extradition Process Continues

The CBI filed a charge-sheet in 2009 alleging the Petitioner’s involvement in a conspiracy concerning NAFED transactions.

The charge-sheet recorded an Australian address for him.

After the Petitioner left India, summons were issued; in March 2010, the ACMM recorded that he had not been served and directed fresh service.

The record disclosed no subsequent service at the Australian address.

In 2014, the ACMM initiated proceedings under Section 82 Cr.P.C. and declared him a Proclaimed Offender, although the Court had recorded that the proclamation process had been returned not duly served.

The Petitioner, later arrested in the Philippines, challenged the proclamation and sought a stay of the extradition process.

Section 82(1) Cr.P.C. requires material giving the Court reason to believe that a person against whom a warrant has issued has absconded or is concealing himself to prevent execution; an unexecuted warrant alone does not establish that jurisdictional condition.

A proclamation must also comply with the publication and notice requirements in Section 82(2).

Section 82(4) permits a person to be declared a Proclaimed Offender only for offences enumerated in that provision.

Section 105 Cr.P.C. and the Ministry of Home Affairs’ guidelines provide recognised channels for service of judicial process abroad.

The Court relied on Hitesh Kumar v. State (NCT of Delhi) and Manish Popli v. CBI on the need for a proper statutory basis for a proclamation, and Sanjay Bhandari v. State (NCT of Delhi) on the distinction between a proclamation under Section 82(1) and a Proclaimed Offender declaration under Section 82(4).

Separately, Articles 8 and 9 of the India–Philippines Extradition Treaty govern extradition requests and provisional arrest, while Article 15 and Rule 5 of the Philippine Rules on Extradition Proceedings provide for voluntary surrender.

A Red Notice is a mechanism of international police cooperation, not itself an arrest warrant.

The record showed that the Petitioner had not been served in 2010, that his Australian address was known to the investigating agency, and that no attempt to serve him there was disclosed.

The 2014 order relied on unexecuted process and did not identify material establishing deliberate evasion; moreover, the Court had recorded that the Section 82 process was not duly served.

Even if publication had later occurred, it could not cure the absence of the required satisfaction under Section 82(1).

Independently, the alleged offences—Sections 120B, 409, 420, 467, 468 and 471 IPC—were not enumerated in Section 82(4), so the Petitioner could not be declared a Proclaimed Offender.

The proclamation’s invalidity did not, however, invalidate the separate arrest warrants or itself require suspension of the Red Notice or extradition process.

The Treaty provided a separate mechanism for voluntary surrender through the competent Philippine authorities.

The 2014 order was set aside insofar as it declared the Petitioner a Proclaimed Offender, and the related Section 82 proceedings and Section 83 process founded on that proclamation ceased to operate against him.

The arrest warrants, pending prosecution, INTERPOL Red Notice and extradition request were not set aside or stayed; their continuation remained subject to applicable law and the Treaty.

The CBI was directed to communicate the judgment to the relevant INTERPOL and extradition authorities.

The Petitioner remained at liberty to seek voluntary surrender under the Treaty and Philippine rules.