Section 84, BNSS 2023 — the substance

(1) If any Court has reason to believe 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 specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published — by being publicly read in some conspicuous place of the town or village where he ordinarily resides; by being affixed to some conspicuous part of the house in which he ordinarily resides, or to some conspicuous place of the town or village; and by a copy being affixed to some conspicuous part of the Court-house. The Court may also direct publication in a daily newspaper circulating in the place where he ordinarily resides.

(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence which is punishable with imprisonment of ten years or more, imprisonment for life or with death, 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.

📖 Matru @ Girish Chandra v. State of Uttar Pradesh, (1971) 2 SCC 75

Facts: A conviction rested in part on the fact that the accused had absconded after the occurrence, and the prosecution urged that his flight was itself a strong circumstance pointing to guilt.

Held: The Supreme Court held that mere absconding by itself does not necessarily lead to a firm conclusion of a guilty mind, and that even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime — such is the instinct of self-preservation. The Court held that the act of absconding is no doubt a relevant piece of evidence to be considered along with the other evidence, but that its value would always depend on the circumstances of each case. It held that normally courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction, and that it can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than the guilt of the accused.

Ratio: Mere absconding does not necessarily lead to a conclusion of a guilty mind, since even an innocent man may panic and evade arrest. It is relevant evidence but a very small item, and can scarcely be a determining link in a chain of circumstances.

📖 Rabindra Kumar Pal @ Dara Singh v. Republic of India, (2011) 2 SCC 490

Facts: Among the circumstances relied on against the accused was that he had remained absconding for a considerable period after the occurrence, and the Court considered what weight such conduct bears.

Held: The Supreme Court held that the conduct of an accused in absconding is a relevant fact, being conduct which influences or is influenced by the fact in issue; but that it must be evaluated with care, since the reasons for which a person absents himself may be various and innocent. The Court held that a person may absent himself because he apprehends arrest, because he has been advised to stay away, or because he fears false implication — and that absconding is therefore a circumstance capable of more than one explanation. It held that such conduct cannot form the sole basis of a conviction, and can be used only as a corroborative circumstance where the other evidence independently establishes guilt. The Court emphasised that the weight to be given to it depends entirely on the facts, and that a court should be slow to draw an adverse inference from absence alone.

Ratio: Absconding is relevant conduct but capable of more than one explanation — apprehension of arrest, advice to stay away, fear of false implication. It cannot form the sole basis of a conviction and serves only as a corroborative circumstance.

⚠ The proclamation is the foundation

Everything which follows — the attachment, the bar on anticipatory bail, and the trial in absentia — rests on the proclamation.

A proclamation issued without the conditions section 84 requires may therefore take the foundation away, and with it everything built upon it.

Those conditions are exacting: a warrant must have issued; the Court must have reason to believe that the person has absconded or is concealing himself; the proclamation must require him to appear not less than thirty days after publication; and it must be published in the manner sub-section (2) prescribes.

And for a proclaimed offender there are two further requirements: the offence must be among those sub-section (4) names, and the Court must make such inquiry as it thinks fit before pronouncing him one. A declaration made without inquiry is open to challenge.

The position stated shortly

1. A proclaimed person is one in respect of whom a proclamation under section 84(1) has been published; a proclaimed offender is one whom the Court has pronounced so under section 84(4).

2. A proclamation may issue for any offence; the declaration is confined to offences punishable with ten years or more, life, or death.

3. A proclaimed person needs no declaration; a proclaimed offender is not one until the Court pronounces him so, after such inquiry as it thinks fit.

4. The proclamation requires a warrant to have issued, reason to believe that he has absconded or is concealing himself, and a period of not less than thirty days.

5. Section 85: the Court may order the attachment of his property at any time after the proclamation issues, and where he does not appear it is at the disposal of the State Government.

6. A person evading the process of the Court, and in particular a proclaimed offender, is not entitled to anticipatory bail.

7. Section 356 permits a trial in absence of a proclaimed offender who has absconded to evade trial — a consequence a mere proclaimed person does not face.

8. But mere absconding does not lead to a conclusion of guilt: even an innocent man may panic and evade arrest: Matru.

9. It is relevant conduct capable of more than one explanation, and cannot form the sole basis of a conviction: Dara Singh.

10. And the proclamation is the foundation of everything that follows — so a defective proclamation may take that foundation away.