dear sirs
in a 138 ni case the accused does not appear for the hearing . the court orders proclamation notice . the complainant fails to provide property details of the accused and lastly dismiss the complaint for non prosecution. if traced can the accused be arrested since the court issued proclamation against the offender even after 138 ni case is dismissed.
In the case of
Delhi High Court
Sunil Tyagi vs Govt Of Nct Of Delhi & Anr on 28 June, 2021, the court held that:
This Court is of the view that declaring a person as a Proclaimed Offender leads to a serious offence under Section 174A IPC which is punishable for a period upto 3 or 7 years. It affects the life and liberty of a person under Article 21 of the Constitution of India and it is necessary to ensure that the process under Sections 82 and 83 CrPC is not issued in a routine manner and due process of law is followed. The second important aspect is that once a person has been declared as a Proclaimed offender, it is the duty of the State to make all reasonable efforts to arrest him and attach his properties as well as launch prosecution under Section 174A IPC.
It was also opined that :
One of the fundamental foundations of criminal justice system in India is that the accused of an offence has to be present during the entire process of the criminal trial. The concept of ex-parte trial is alien to the Indian legal system as well as the fundamentals of a fair trial enshrined in Article 21 of the Constitution of India. The presence of the accused is necessary both for the framing of the charge and for recording of evidence during the trial..
Once the Court is satisfied 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, then the Court can issue a proclamation against such person and the said proclamation needs to be duly published in some conspicuous part of (a) the town or village where such person ordinarily resides, (b) house or homestead in which such person ordinarily resides or to some conspicuous part of such town or village, and (c) of the Court-house. Additionally, if the Court seems fit, a copy of the proclamation shall be published in a daily newspaper circulating in the place in which such person ordinarily resides.
Under Section 82(3) of the Code, once a proclamation is issued by the Court in accordance with Section 82(2)(i) of the Code, a statement by the Court issuing proclamation to the effect that the proclamation was duly published shall be treated as conclusive evidence that the proclamation was published on such date.
Under Section 82 of the Code, the Court is required to be satisfied that the warrant could not be executed because the person has absconded or is concealing himself before issuing a proclamation, and also subsequently before declaring him to be a proclaimed offender. Similarly, by the virtue of Section 82(5), the concerned Court is required to satisfy itself again at the stage of declaration of a person as proclaimed offender under Section 82(4) that the concerned accused has absconded or is concealing himself to avoid the execution of the warrant or the proclamation.
In your case you should make sure that if the court has issued the Proclamation order after observing the above said formalities, in that case, the law will take its own course of action.
