2010(4) Crimes 745 (Mad.)
SHORT NOTE
MADRAS HIGH COURT
G.M. Akbar Ali, J.
Anandan @ Duglas Devanandha —Petitioner
versus
State by Inspector of Police —Respondent
Criminal O.P. No. 18861 of 2010
Decided on 8.12.2010

IMPORTANT POINT
Remedy available to such proclaimed offender is to surrender before the Court and show sufficient cause for non appearance and recall warrant and as well as the proclamation. However, it is the discretion of the court either to condone the absence or to detain him so that the proceedings could be concluded.

Headnote:Criminal Procedure Code, 1973—Section 82—Proclamation—Issuance of warrant is a condition precedent for proclamation—Court must record its satisfaction that it had reason to believe that accused had been absconding or concealing himself—Object of proclamation is to require appearance of accused—Petitioner was charge-sheeted with other accused person under Sections 147, 148, 307, 302/149 IPC and under Section 25 Arms Act—Petition and other accused were citizen of Srilanka known as Srilankan Tamils and were temporarily residing in Chennai—Accused armed with AK-47 and automatic rifles opened fired indiscriminately at public and one person was killed by bullet injury in 1986—Petitioner was granted bail by High Court and had been appearing before trial Court till 2.3.1990—High Court cancelled the bail of petitioner on 6.4.1990 and he absented from Court and NBW issued remained unexecuted till on 1994 that proclamation was executed against him—Petition to quash the proclamation on plea that he was expatriated to Srilanka and was now a Cabinet Minister in Srilankan Government and was not aware of proclamation—Whether proclamation process was liable to be quashed? No.

       Held: Therefore, the procedural aspects to issue an order of proclamation are:

        i) pending of non-bailable warrant is sine qua non;

        ii) all efforts should have been taken to execute the warrant;

        iii) the unexecuted warrant shall be returned alongwith a report;

        iv) the court must satisfy itself that the accused is concealing and absconding so that the warrant cannot be executed before ordering proclamation as per section 82 (1);

        v) the proclamation shall be effected as per section 82 (2);

        vi) the court shall record that the publication as per provision was complied with;

        vii) failing appearance of the accused the court,

        a) may proceed to examine witnesses;

        b) may transfer the case to long pending case register;

        c) may proceed to attach the property under section 83;

        d) may pronounce the accused as proclaimed offender.

       The legal consequences shall be:

        i) publication of proclamation is to require or compel the appearance of the accused;

        ii) he shall surrender or arrested and be produced before the Magistrate;

       iii) if the accused has sufficient cause for his non-appearance on the specified time and date;

        a) he may approach the Court for recalling the warrant and if he has been pronounced as “proclaimed offender”,

        b) he shall surrender himself before the Court and plead to set aside the order passed by the trial court.

        c) on such application, the Court may pass suitable orders. That being the procedural and legal position, let us consider the present case.

        The entire back records from the trail court was called for and perused. It is seen from the records, the petitioner was initially granted bail by this Court and thereafter he was appearing before the Court till 2.3.1990. On 9.4.1990 his absence was condoned. However, this Court has cancelled the bail by its order dated 6.4.1990. Based on this order a Memo was filed by the prosecution before the trial court to issue NBW. This court passed an order “perused the order of the High court. Issue NBW”. This order was dated 25.4.1990. On 18.6.1990, the trial Court has recorded NBW pending. Thereafter, the court has been adjourning the case by endorsing NBW pending till 30.6.1994.

       It is seen from the record that as early as on 29.8.1988, the warrant issued against the other accused were returned to the Court alongwith the Memo dated 29.8.1988. The non-executed warrant of the petitioner was not returned alongwith the Memo filed by the prosecution.

       In the memo dated 30.6.1994, filed by the prosecution, it is stated “all the accused are reportedly absconding. Despite diligent and pain taking effort, none of them could be found. Their whereabouts are not ascertainable. The non-bailable warrant issued could not be executed. In this situation, the accused will have to be declared as proclaimed offenders as they are absconding and concealing themselves in order to make the warrant issued against them non-executable”. Only on this memo, the impugned order came to be passed.

       In its order the trial court has stated as follows:

        “this court has reasons to believe on the basis of the report of the Inspector of Police, K.3 Police Station, Madras that the absconding accused by name Selvanathan and nine others who have committed offence punishable under the abovesaid Acts, have absconded and they are concealing himself and they could not be apprehended and in those circumstances, the proclamation is ordered to be issued under Sec. 82 Cr.P.C., requiring the abovesaid accused to appear before the Court.....”

       The records would show that the proclamation was effected in accordance with the provision except the paper publication which is in the form of a news item. As per the provision, the court may order publication, the paper publication is only an option. Under section 82 (3) of the code, a statement in writing by the court shall be the conclusive evidence that the requirements of the section has been complied with.

       However, the fact remains that the petitioner and the other accused are Srilankans and at the relevant point of time, officially or unofficially, they have left for Srilanka. The Memo filed by the prosecution did not disclose this fact and the court has also not taken note of it. As stated earlier, persons who have already left the country without the knowledge of any action to be taken against them under any Act, but who continue to remain outside the country with a view to avoid any order that may be passed can be taken to be absconding. If he leaves the country with a view to avoid or escape the arm of the law, he can be said to abscond. Therefore, as far as the petitioner is concerned he continued to remain outside the country when he had the knowledge of pendency of a criminal case and thereby absconding. As discussed earlier, the proclamation is also in accordance with the provision and therefore I am of the considered view that no illegality was committed by the court in issuing the proclamation.

       In the present case the court has not pronounced the petitioner as a proclaimed offender. After issue of proclamation the petitioner failed to appear and the court had proceeded to transfer the case to the long pending case register. If the accused is produced or appears, the court can retrieve the case and can proceed with the trial. Obviously the petitioner was not in India when the proclamation was issued and he has sufficient cause for his non-appearance.

       Mr. Hassan Mohammed Jinnah, the learned Additional Public Prosecutor submitted that this court had cancelled the bail granted to the petitioner in Crl.M.P.No.4986 of 1990 dated 6.4.90 and thereafter, since the petitioner failed to appear before the trial court, a non-bailable warrant was issued by the trial court and the same is pending. Since the bail granted earlier was cancelled and the petitioner continued to remain absent from the proceedings of the Court and the non-bailable warrant issued by the trial Court could not be executed, the trial court effected “proclamation” under Section 82 Cr.P.C and thereby the petitioner was declared as “proclaimed offender.” The learned Additional Public Prosecutor pointed out that taking into consideration the above facts, the proclamation effected is in order and the petitioner has no other option except to surrender.

       However, I am of the considered view, the Court has not pronounced the accused as proclaimed offender. Therefore, the remedy available to the petitioner is only as stated above.

       To sum up ; the publication of proclamation requiring the appearance of the petitioner and others dated 30.4.1994 is valid; the petitioner is not pronounced as proclaimed offender; the bail granted to the petitioner was cancelled and therefore the petitioner is not on bail. Therefore I decide that the proclamation dated 30.4.1994 need not be quashed but hold that suitable directions may be issued to meet the ends of justice.

       In the result, the petition is disposed of, with a liberty to the petitioner to approach this court to seek for an Anticipatory bail and also with the direction to the petitioner to approach the trail court to recall the non-bailable warrant pending against him by showing sufficient cause for his non-appearance and on filing of such application, the trail court is directed to consider the application and pass suitable order in the light of the observation made in this order. (Paras 29 to 40)

       Result: Petition disposed of.