A core principle of the Indian criminal justice system is that the accused must be present throughout the criminal trial.[2] The idea of an ex-parte trial is foreign to Indian law and contradicts the fair trial principles.[3] guaranteed by Article 21 of the Indian Constitution[4]. The accused's presence is essential for both the framing of charges and the recording of evidence during the trial.

The Criminal Procedure Code includes various mandatory and discretionary processes to ensure the presence of accused individuals or suspects during trials. Courts and police use these procedures to secure the attendance of the accused. However, two significant issues have emerged in the application of these procedures. Firstly, some individuals are declared proclaimed offenders without proper service of summons or execution of warrants. Secondly, many proclaimed offenders manage to delay their trials, hindering the judicial process perpetually.

Chapter VI of the Code of Criminal Procedure allows for "processes to compel appearance".
Chapter VI of the Code is divided into four parts:

• Part A: Summons (Sections 60 – 69)
• Part B: Warrant of Arrest (Sections 70-81)
• Part C: Proclamation & Attachment (Sections 82-86)
• Part D: Other rules regarding processes (Sections 87 – 90)
• Part C: of Chapter VI of the Code of Criminal Procedure pertains to coercive measures which can be taken by the Court to apprehend a person in respect of whom a warrant of arrest has been issued^[5]

The term "Proclaimed Offender" encompasses any individual declared as an offender by any court or authority in any region of India where this Code is not applicable. This applies to acts that, if committed in the areas where this Code is enforced, would constitute offences punishable under specific sections of the Indian Penal Code (IPC), namely Sections 302, 304, 382, 392 to 399 (inclusive), 402, 435, 436, 449, 450, and 457 to 460 (inclusive)[6].

If a court has reason to believe that a person with an outstanding arrest warrant has absconded or is hiding to avoid arrest, it can issue a written proclamation. This proclamation will require

The person must appear at a specific place and time, which must be at least 30 days from the publication date.[7]

If a proclamation is issued for a person accused of certain specified heinous offences, the court may declare them a "Proclaimed Offender."[8]

The primary responsibility for arresting a proclaimed offender lies with the police station where the accused resides. Police officers can arrest a proclaimed offender without a magistrate's order or a warrant.[9] Additionally, any private person can arrest a proclaimed offender and promptly hand them over to the police without delay.[10]

A list of all proclaimed offenders who are absconding is displayed at each police station. This list is hung up in the police station's office, and a duplicate is posted on the police station's notice board. It includes offenders wanted in cases registered both at the home police station and at other police stations.[11]

In the case of Lavesh v. State (NCT of Delhi)[12], the Supreme Court ruled that anticipatory bail should not be granted to an accused who has been declared an absconder and has not cooperated with the investigation. According to Section 82 of the Criminal Procedure Code (CrPC), someone classified as an absconder or a proclaimed offender is not eligible for anticipatory bail.

The names of all proclaimed offenders are recorded in the Police Station Register, also known as the Surveillance Register. Additionally, the Criminal Records Office (CRO) branch at the Superintendent of Police (SP) office maintains a register of proclaimed offenders divided into two parts. This register includes the names of all residents of the home district, organised by the police station of their residence. It also lists all offenders proclaimed in the district but do not reside there.[13]

The Superintendent of Police regularly updates the list of proclaimed offenders. Names of individuals accused of minor offences or involved in cases where, due to the passage of time, there is no sufficient evidence available, are removed from the list after consulting with the District Magistrate and the SP of the district where the person was proclaimed. When a proclaimed offender is arrested, the local police station and the district where the individual resides are notified so that their name can be removed from the register of proclaimed offenders.[14]

Anyone who knowingly harbours a proclaimed offender to prevent their arrest can be punished, which allows for imprisonment of up to seven years in some instances.[15] Additionally, the court that issues the proclamation may order the attachment of the offender's property to compel their appearance in court.[16]

If enough evidence is gathered to justify the arrest of an accused during the investigation of a case, but the accused is found to be evading arrest, a warrant should be obtained immediately. The Investigating Officer should then make every effort to locate the accused. In the case of the State of Maharashtra v. Dawood Ibrahim Kaskar[17], the Supreme Court ruled that a warrant of arrest can be issued against a person accused of a non-bailable offence who is evading arrest. The authorities should question the accused's relatives, friends, and anyone likely to know their whereabouts and warn them against harbouring the fugitive.

If the accused continues to evade arrest and the warrant cannot be executed, the police officer responsible for executing the warrant should appear before the Magistrate to provide evidence that the warrant could not be carried out. The Magistrate should then be requested to proclaim Section 82 of the CrPC and an order to attach the accused's property under Section 83 of the CrPC. These proceedings should be completed promptly.

Section 82 of the CrPC states that if the Court is satisfied with the circumstances, it will issue a proclamation, giving the accused 30 days from the date of the declaration to appear before the Court. Issuing a warrant is a prerequisite for a proclamation order.

With the authority to issue a warrant, a court can issue an order of proclamation. These stringent measures are essential because financial sanctions can compel the person to appear in court.

Before issuing an order of proclamation, the court must ensure that there are valid reasons for doing so. An order of proclamation without sufficient cause would be illegal, rendering any subsequent actions, such as property attachment, unlawful. Therefore, it is crucial that the court is satisfied that the person has absconded or is concealing themselves before issuing such an order.

The 2005 amendment to the CrPC introduced several changes regarding the proclamation order. A new subsection (4) was added to Section 82, mandating that if a person accused of an offence punishable under certain sections, including Section 302, fails to appear at the specified time and place stated in the proclamation order, they would be declared a proclaimed offender.

Additionally, Section 174A was added to the IPC by the 2005 amendment. This section stipulates a punishment of up to three years with or without a fine for failing to comply with a proclamation issued and up to seven years with a fine for being declared a proclaimed offender.[18]

Sections 83 to 86 of the CrPC deal with the attachment of property and the effects. Empower the court to attach the property of a person against whom a proclamation has been issued[19]. Therefore, an attachment order can only be made after a proclamation order has been issued for justifiable reasons. This contrasts with the old code, where an attachment order could be issued at any time, even simultaneously with the proclamation order.

However, under the current CrPC, an attachment order can still be made simultaneously with a proclamation order in two exceptional circumstances: when the property is about to be disposed of or when it is about to be removed from the court's local jurisdiction. The court can attach movable and immovable property, but complications can arise when attaching joint family property.

If a person other than the proclaimed offender is interested in the attached property, they may object to the attachment within six months.[20] Discusses the release of the attached property if the proclaimed person appears within the specified time[21]and outlines the appeal process for orders rejecting applications for the restoration of the attached property[22].

The BNSS suggests three changes to the current scheme:

1. It clarifies the types of offences that can lead to someone being declared a proclaimed offender [23].
2. It permits courts to try proclaimed offenders in their absence without requiring them to be physically present [24].
3. It allows courts to seek assistance in attaching properties of proclaimed persons located in foreign countries or regions outside of India [25].

Proclaimed Offender under Cl.84(4)[26]
The BNSS proposes significant changes to Section 82(4) of the CrPC by broadening the criteria for declaring someone a proclaimed offender. It suggests replacing the specific list of offences with a sentence-based qualifier, covering any offence punishable by ten years or more, life imprisonment, or death. Additionally, it extends this concept to offences under any other law. Despite these changes, the BNSS maintains the current procedures for issuing a proclamation notice and distinguishes between a 'proclaimed person' and a 'proclaimed offender' based on the nature of the offences and the accused's response to the notice.

Proclaimed Offenders and Trials in Absentia Cl.356[27]
Clause 356 of the BNSS aims to speed up the judicial process by allowing trials to continue even if the accused is absent. This is intended to address delays caused by absconding offenders. However, it raises significant concerns about the right to a fair trial. It is crucial that the accused is informed and has access to legal representation to balance timely justice with constitutional rights.

This clause is primarily aimed at serious crimes, thereby restricting in absentia trials to severe cases. Safeguards like issuing proclamation notices are meant to prevent abuse of power. Nonetheless, there are significant concerns about the lack of stringent proof requirements and the potential for manipulation by authorities. Additionally, the inability to appeal convictions without the accused present could lead to prolonged legal battles.

While Clause 356 seeks to balance the need for timely justice with fair trial rights, it highlights the importance of strong procedural safeguards to prevent misuse and ensure justice is fairly administered.

Proclamation and Attachment of Property Abroad Cl.86[28]
The BNSS aims to tackle critical issues in the criminal justice system by introducing trials in absentia and allowing for the attachment of property belonging to proclaimed offenders. Trials in absentia are designed to mitigate delays caused by absconding offenders, thus speeding up the judicial process. However, this approach must be balanced with the need to ensure a fair trial, requiring stringent procedural safeguards to protect the rights of the accused.

Clause 86, which permits the attachment and forfeiture of property owned by proclaimed offenders abroad, represents a significant shift in international criminal proceedings. While it aims to enforce legal accountability and compel the appearance of absconding offenders, it raises concerns about alignment with existing legal frameworks. The procedural differences between Chapter VI(C) and Chapter VIII highlight the necessity for clear guidelines and robust legal standards.

For these provisions to be adequate, careful implementation and oversight are essential. This includes ensuring that accused individuals are adequately informed, strictly adhering to procedural requirements, and maintaining robust legal safeguards. The success of these measures depends on their consistency with constitutional rights, practical international cooperation, and rigorous adherence to due process.

Conclusion
In summary, delving into the realm of proclaimed offenders and the associated legal processes highlights the delicate equilibrium between accelerating justice and safeguarding core rights. It becomes evident that a stringent set of procedural checks is indispensable to thwart any potential abuse of authority and maintain equity in legal proceedings.

While suggestions like conducting trials without the accused and extending property attachment globally aspire to mitigate systemic delays and bolster accountability, their enactment demands scrupulous adherence to constitutional tenets and international legal norms. These measures must be executed effectively and overseen rigorously to ensure they serve their intended purpose while upholding the rights of all parties involved.

End Notes:

• Shekhar Chandra Gupta Bsc LLB Sem. 4th
• Sri T. Mallikarjuna Rao vi – Addl. District judge, Machilipatnam, general principles of fair trial, districts ecourts, https://districts.ecourts.gov.in/sites/default/files/1st%20topic.pdf
• Amandeep Kaur, Principles of Fair Trial, ipleaders (May. 01, 2024, 10:04 AM), https://blog.ipleaders.in/fair-trial-adversary-system-principles-of-fair-trial/
• INDIA CONST. art. 21
• The Code of Criminal Procedure, 1973, § 73
• The Code of Criminal Procedure, 1973, § 82(4)
• The Code of Criminal Procedure, 1973, § 82(1)
• The Code of Criminal Procedure, 1973, § 82(1)
• The Code of Criminal Procedure, 1973, § 41(1)(c)
• The Code of Criminal Procedure, 1973, § 43(1)
• Sunil Tyagi v. Govt. of NCT of Delhi & anr, Crl.M.C. 5328/2013
• Lavesh v. State of NCT of Delhi, (2012) 8 SCC 730
• Delhi Police, Maintenance of Police Station Records, (Issued on October 25, 2019)
• Advocatein Chandigarh, Who Is The Proclaimed Offender, Advocatein Chandigarh, (May. 01, 2024, 10:04 AM), https://drupal.alliance.edu.in/drupal/node/4817
• Indian Penal Code, 1860 § 216
• The Code of Criminal Procedure, 1973, § 83
• State of Maharashtra v. Dawood Ibrahim Kaskar, 1997 (2) crimes 92 (SC)
• The Code of Criminal Procedure, 1973, § 82(1)
• The Code of Criminal Procedure, 1973, § 83
• The Code of Criminal Procedure, 1973, § 84
• The Code of Criminal Procedure, 1973, § 85
• The Code of Criminal Procedure, 1973, § 86
• The Bharatiya Nagarik Suraksha Sanhita, 2023 § 84(4)
• The Bharatiya Nagarik Suraksha Sanhita, 2023 § 356
• The Bharatiya Nagarik Suraksha Sanhita, 2023 § 86
• The Bharatiya Nagarik Suraksha Sanhita, 2023 § 84(4)
• The Bharatiya Nagarik Suraksha Sanhita, 2023 § 356
• The Bharatiya Nagarik Suraksha Sanhita, 2023 § 86