Courts should record reasons before declaring person 'proclaimed offender': Delhi High Court

The Delhi High Court has recently observed that before pronouncing a person a ‘proclaimed offender’, the concerned court is required to record reasons as to how the person against whom a warrant was issued has absconded or concealed himself such that the it could not be executed (Mohd. Haris Usmani v The State)..Justice Manoj Kumar Ohri said that the Court has to satisfy itself that the steps provided under Section 82(1) of the Code of Criminal Procedure (CrPC) are scrupulous followed..“On a perusal of Section 82(4) CrPC, it is observed that the use of the expression ‘after making such inquiry as it thinks fit’ implies that at the time of pronouncing a person as ‘proclaimed person’ or ‘proclaimed offender’, the concerned Court has to satisfy itself that the steps indicated in Section 82(1) CrPC are scrupulously followed. The Court is required to record reasons either after taking evidence or without evidence that the person against whom warrant was issued has absconded or concealed himself so that such warrants cannot be executed,” Justice Ohri said in his judgment. .The observations were made while the court was dealing with a petition filed by one Mohammed Haris Usmani against whom a first information report (FIR) was registered at the Kalkaji Police Station under several sections of the Indian Penal Code, including rape, criminal intimidation and criminal breach of trust.The Investigating Officer in the case had obtained a non-bailable warrant against Usmani and then moved an application under Section 82 of the CrPC to get him declared an absconder. The application stated that the police had made a search for the petitioner but he was not available at the given address. In July 2020, the Duty Metropolitan Magistrate recorded the statement of the process server and on the same day it declared the man an absconder.The counsel appearing for petitioner told the Court that there was a complete non-application of mind by the Magistrate in declaring Usmani an absconder. The process under Section 82 CrPC was issued against him on February 10, 2020, for March 24 that year, however a nation-wide lockdown was imposed in the country then and he could not appear before the Court.The petitioner further argued that he filed for anticipatory bail in which he was directed to join the investigation, which he could not because he was prescribed 15-day home isolation..Justice Ohri noted that the issuance of process under Section 82 CrPC and pronouncement of a person as a ‘proclaimed offender’ entails serious consequences, which includes a deprivation of personal liberty and attachment of property. Therefore, it is more important that such orders reflect the satisfaction of the court, the single-judge said.“It is worthwhile also to note that the issuance of process under Section 82 CrPC and pronouncing a person as ‘proclaimed person’ or ‘proclaimed offender’ entail serious consequences, including not only deprivation of personal liberty of a person, but also attachment of properties and initiation of proceedings under Section 174A IPC against such person. Therefore, any order to that effect must reflect satisfaction of the Court that the person concerned has absconded or is concealing himself to avoid the process of law. Even otherwise, reasons form the heart and soul of any judicial pronouncement. No judicial order is complete without reasons and it is expected that every Court, which passes an order, should give reasons for the same,” the Court said..The Court said that the lower court’s order was wrong on the ground that Usmani was not accused of any offences under Section 82(4) therefore he could only have been pronounced a proclaimed offender and not an absconder.It, therefore, added that when the lower court’s order is tested in light of the mandate of section 82 CrPC, it fails on the touchstone of judicial scrutiny.Hence, the same was set aside..While the petitioner in the case was represented by Senior Advocate Vikas Pahwa along with advocates Raavi Sharma, Nitin Singh, Parvez Dabas and Murari Tiwari, Additional Public Prosecutor Hirein Sharma appeared for the State. Advocates Aishwarya Rao and Mansi Rao appeared for the complainant in the case..[Read Judgment]