Failure to attempt service at a known foreign address through proper channels vitiates proclamation proceedings.

In brief

The question

1. Whether the proclamation order dated 13.12.2019 declaring the Petitioner a "proclaimed person" was legally sustainable given that the investigating agency was aware of his overseas residence and failed to effect service through proper channels

The court held

The Court held that the initiation and culmination of proclamation proceedings under Section 82 Cr.P.C. were legally unsustainable.

It also directed

The High Court set aside the order dated 13.12.2019 declaring the Petitioner a "proclaimed person" and quashed all consequential proceedings, including the Look-Out Circular (LOC) and any actions under Sections 82/83 Cr.P.C.

The Petitioner was directed to appear before the concerned Trial Court within four weeks and join the proceedings in accordance with law.

01Facts

The Petitioner, an Australian citizen and permanent resident, was accused of rape and criminal intimidation in FIR No. 162/2018 (Sections 376/506 IPC) registered at P.S. Defence Colony.

¶ 1-2

The Petitioner alleged that the case was a "honey-trap" conspiracy involving extortion by the prosecutrix and police officials, leading to a counter-FIR No. 281/2018.

¶ 2

The Petitioner left for Australia in March 2018.

¶ 19

While he was abroad, the learned CMM (South-East), Saket, issued Non-Bailable Warrants (NBWs) and subsequently declared him a "proclaimed person" on 13.12.2019.

¶ 31

In January 2020, the Delhi High Court transferred the investigation of both FIRs to the CBI.

¶ 6

Between 2020 and 2022, the Petitioner remained in contact with the CBI via email and WhatsApp, complying with Section 160 Cr.P.C. notices, but was unable to travel to India due to COVID-19 restrictions and refusal of travel permission by Australian authorities.

¶ 8, 37-38

Despite this communication, the CBI filed a charge-sheet in September 2021 showing the Petitioner as an absconder.

¶ 9, 40

02Issues

i.1. Whether the proclamation order dated 13.12.2019 declaring the Petitioner a "proclaimed person" was legally sustainable given that the investigating agency was aware of his overseas residence and failed to effect service through proper channels

¶ 33, 50

ii.2. Whether a person can be treated as "absconding" or "concealing himself" under Section 82 Cr.P.C. while maintaining continuous communication with the investigating agency and being prevented from travel by global pandemic restrictions

¶ 40-42

iii.3. Whether the current challenge was barred by the High Court's previous order dated 09.01.2020 in W.P. (Crl.) 1543/2019

¶ 44-47

03Law Applied

The court applied the mandatory procedural requirements of Sections 82 and 83 of the Cr.P.C. regarding the proclamation and attachment of property of an absconding person.

¶ 31

It relied on the precedent in Sunil Kumar v. State (2001), which mandates that for persons residing abroad, summons and warrants must be served through the Ministry of External Affairs, and the court must record a specific satisfaction that the accused is deliberately concealing himself.

¶ 34-35

The court further emphasized that "absconding" requires a subjective intent to evade the process of law, which is negated by active cooperation with the investigating agency.

¶ 41-42

Provisions in the judgment · 9 · Linked ones open on LawLens

Indian Penal Code, 1860 Section 376 Section 384 Section 506

Code of Criminal Procedure, 1973 Section 82 Section 83 Section 156 Section 160 Section 299 Section 482

04Reasoning

The Court observed that the investigating agency was fully aware of the Petitioner's Australian address via a pending writ petition, yet it misled the CMM by attempting service only at his Delhi parental home.

¶ 32-33

No attempt was made to serve the Petitioner via the Ministry of External Affairs.

¶ 33

The Court found a gross contradiction in the CBI’s conduct: the Investigating Officer (I.O.) issued Section 160 Cr.P.C. notices and communicated with the Petitioner via WhatsApp while simultaneously filing a charge-sheet labeling him an absconder.

¶ 40, 42

The Court noted that the Petitioner’s non-appearance was not contumacious but was due to documented COVID-19 travel bans and the Australian government's refusal to grant travel exemptions.

¶ 38, 43, 49

Regarding the 09.01.2020 order, the Court clarified that the specific proclamation order (13.12.2019) was never brought to the notice of the previous bench, and thus the current challenge was a substantive new grievance rather than a review.

¶ 46-47