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If Proclaimed Offender or PO by Court, Then Read This.

 

Quash PO Order in High Court

Proclaimed Offender or PO is a dreaded word for every respectable citizen whose name is unnecessary dragged into a criminal case and now he fears arrest anytime. In case, the one who is reading this post is declared ‘Proclaimed Offender’ anywhere in Punjab, Haryana or Chandigarh, this post of mine would bring immediate relief.

1.Who is Proclaimed Offender? - If any Court has reason to believe that any person against whom a warrant of arrest has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than 30 days from the date of publishing such proclamation. Where a proclamation published is in respect of a person accused of certain specified heinous offences and such person fails to appear at the specified place and time required by the proclamation may pronounce him a ‘Proclaimed Offender’ and make a declaration to that effect. s.82 CrPC.

2.Punishment - On being declared as PO, punishment is 3 years or fine or both. Further offence under section 174 IPC can be registered against PO’s extending it to 7 years or fined or both. Harboring PO is also an offence under section 216 of IPC with jail up to 7 years in certain cases.

3.Attachment of Property- Property of proclaimed offender can be attached under section 83 of CrPC.

4.Role of Neighbours/Village- Panchayats or Chaukidar of respective villages are often entrusted with responsibility of informing it to police as soon as they know about the PO or his/her coming home.

5.Where is Proclamation published?-  At following places- Some conspicuous place of town/village, conspicuous place of house/homestead, conspicuous Court house, publish in newspaper if court thinks fit.

6.Who can arrest PO?- Primarily police officer of police station of which he is a resident. However any police officer with or without courts order can arrest. Also any private person can also arrest and forward the PO to Magistrate.

7.Where is PO written in Law? – Proclaimed Offender or you may call it PO is covered under Section 82 of CrPC and attachment of PO’s property under Section 83. If you wish to read the bare provision yourself, here it is:

S. 82- Proclamation for person absconding.

Description

i.          If Any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

ii.         The proclamation shall be published as follows— (i) a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; b) it shall be affixed to some conspicuous part of the house or home-stead in which such person ordinarily resides or to some conspicuous place of such town or village; c) a copy thereof shall be affixed to some conspicuous part of the Court house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

iii.        A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of Sub-Section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

iv.        Where a proclamation published under Sub-Section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860) and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

v.         The provisions of Sub-Sections (2) and (3) shall apply to a declaration made by the Court under Sub-Section (4) as they apply to the proclamation published under Sub-Section (1).

Once the police informed about the non traceability of accused, proclamation under Section 82 and 83 of CRP is issued

8.Can they attach my Properties? Yes they can under Section 83 of CrPC.  Read the section 83 CrPC for your bare perusal here:

S. 83 Attachment of property of person absconding

Description

1. The Court issuing a proclamation under section 82 may, for reasons to be recorded in       writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person;

Provided that where at the time of the issue of the proclamation the Court is   satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued;

a. is about to dispose of the whole or any part of his property, or

b.is about to remove the whole or any part of his property from the local jurisdiction of the Court. It may order the attachment simultaneously with the issue of the proclamation.

2. Such order shall authorise the attachment of any property belonging to such person within the district in which it is made; and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate.

3. If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made—

a. by seizure; or

b. by the appointment of a receiver; or

c. by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf; or

d. by all or any two of such methods, as the Court thinks fit.

4. If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases—

by taking possession; or

by the appointment of a receiver; or

by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to any one on his behalf; or

by all or any two of such methods, as the Court thinks fit.

5. If the property ordered to be attached consists of live-stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of the sale shall abide the order of the Court.

6. The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).

9.Compliance of Sec 82 and 83 CrPC- Section 82 and 83 are to be read in harmony with each other only after it. Only after period of 30 days  after publication of proclamation, proceedings u/s 83 must commenced. Though exceptions are there but requires justification in order if exercised clause (a) of (b) of proviso to section 83 (1).

10.Language of Proclamation?- Please find it below:

PROCLAMATION REQUIRING THE APPEARANCE OF A PERSON ACCUSED

Whereas complaint has been made before me that ______ (name, description and address) has committed (or is suspected to have committed) the offence of _______ punishable under ______ section of the Indian Penal Code, and it has been returned to a warrant of arrest thereupon issued that the said ________ (name) cannot be found, and whereas it has been shown to my satisfaction that the said ________ (name) has absconded (or is concealing himself to avoid the service of the said warrant); Proclamation is hereby made that the said _______ of ________ is required to appear at ________ (place) before this Court (or before me) to answer the said complaint on the ________ day of _________ Dated, this _______ day of _______, 20___ (Seal of the Court) (Signature)

11.For what offences one can be declared as PO?- All the offences under IPC where it is necessary to compel the appearance of accused unless he is exempted. If search warrant cannot be executed, court may publish proclamation requiring him to appear at a specified time and place not less than 30 days from the date of publishing such proclamation. Once the proclamation is published and the accused don't appears the court may pronounce declaration to that effect under Section 82 CRPC.

12.Consequences of  being declared as PO? Consequences of being declared as PO are- you can be arrested anytime whether 12 am or 12 pm hardly matters, Strictly no government job because now you have a criminal record, you can't fly abroad any longer as passport is cancelled or if caught seized.

13.Should I apply for Anticipatory Bail or quash the PO order? - No Anticipatory Bail to PO be given by vide order of Supreme Court in State of Madhya Pradesh vs. Pradeep Sharma (Crl) Appeal No. 2049 of 2013, Arising out of SLP (Crl) no. 4102 of 2013.

It is better to go in for quashing the PO order because High Courts will rarely grant you anticipatory bail. Strictly advisable not to go for the quashing of FIR itself when you are declared Proclaimed Offender (PO). Remember while arguing strict compliance of Section 82 and for the 83 of CrPC to give effect to PO proceedings. Person can be declared Proclaimed Offender in 498-A and NDPS cases also.

Few noted Judgments:

When accused is declared PO in bailable offences than ordinary he should not be sent to Jail if he furnishes bail bond and surety bond. Hardev vs State of Punjab

Anyone apart from the offences listed in Section 82 (4) can be declared as PO. Punjab and Haryana High Court removed this lacuna in the case of Deeksha Puri vs. State of Haryana

Proclaimed Offender may be granted benefit of the regular bail -Vivek Gaur vs. Naresh Kumar Delhi High Court on 2.1.2012.

Supplementary charge sheet under section 174-A can't be added by police before declaring accused as PO. Deepak Kumar Saha versus State of Delhi

 It is seen usually in Punjab with returning NRI’s to grab their land, they are introduced in false criminal cases and stopped from going abroad again. Then NRI’s prefer not to return again. Meanwhile the person is declared PO in the trial court proceedings. So it is advisable, don't be get hijacked in India but rather consult a competitive criminal lawyer to understand the gravity of situation and then apply for quashing PO order in High Court accordingly. PO proceedings can also be started if accused stops appearing in the trial court proceedings after issuance of Bailable, Non-Bailable warrants and Proclamation.

If you wish to seek any case specific advice then just dial 99888-17966 and say LegalSeva. Or you may also write to us at satish@legalseva.net

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