If you are stuck in such a situation, here is what to do.

In a legal proceeding initiated by Mr. Rohan against Mr. Sameer in a court in the city of Alipur, the court issued a non-bailable warrant against Sameer for his repeated failure to appear. Despite efforts by the local police, the warrant could not be executed as Sameer had absconded and was deliberately concealing his whereabouts to evade the legal process. Frustrated by the delay, Rohan approached his advocate to understand the legal recourse available to compel Sameer’s presence. He specifically wanted to know if he, as the complainant, could file an application to have Sameer declared a Proclaimed Offender, or if this was a power that the court could only exercise on its own initiative (suo motu). This situation highlights a common challenge in litigation where an accused person attempts to stall justice by absconding.

Advice in such cases

When an accused person absconds to evade justice, it can be incredibly frustrating for the complainant. However, the law provides a clear mechanism to deal with such situations. Here is what you should do:

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• File a Formal Application: Through your lawyer, file an application before the court that issued the arrest warrant. This application should clearly state that the accused is absconding and that the warrant remains unexecuted.
• Provide Supporting Evidence: If you have any information or evidence suggesting the accused is intentionally hiding (e.g., information from mutual contacts, social media activity from an unknown location, proof they have left their last known address), provide it to your lawyer to be presented to the court.
• Cooperate with the Police: Maintain communication with the investigating officer or the police station responsible for executing the warrant. Your application in court will prompt the court to seek a formal report from them, so their cooperation is key.

Applicable Sections of Law

The procedure for dealing with an absconding accused is primarily governed by the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

• Section 84 of the BNSS, 2023 (Proclamation for person absconding): This is the key section. If a court has reason to believe that a person against whom a warrant has been issued is absconding or concealing themselves, the court may publish a written proclamation. This proclamation requires the person to appear at a specified place and time, not less than thirty days from the date of publishing the proclamation.
• Section 84(4) of the BNSS, 2023: This sub-section is crucial. It specifies that if a person is accused of certain serious offences (listed under the Bharatiya Nyaya Sanhita, 2023, such as murder, culpable homicide, kidnapping for ransom, etc.) and fails to appear as required by the proclamation, the Court shall, after conducting an inquiry, declare them a “Proclaimed Offender” and make a declaration to that effect.
• Section 85 of the BNSS, 2023 (Attachment of property of person absconding): As a further step to compel appearance, the court can, at any time after issuing the proclamation under Section 84, order the attachment of any property, movable or immovable, belonging to the proclaimed person.

If you are the complainant

As the complainant, you have an active role to play in ensuring the legal process is not derailed by an absconding accused.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• File an Application: Instruct your lawyer to file a detailed application under Section 84 of the BNSS. The application should annex a copy of the unexecuted warrant and state all the facts that lead you to believe the accused is deliberately absconding.
• Request a Status Report: In your application, you can request the court to direct the concerned police station to submit a formal status report regarding the execution of the warrant. This official report forms the basis for the court’s decision.
• Follow Up Diligently: The legal process requires persistence. Regularly follow up with your lawyer on the status of your application and any reports filed by the police.

If you are the victim

For a victim of a crime, the accused’s disappearance can feel like a denial of justice. Your role is to assist the prosecution in moving the case forward.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.
• Assist the Prosecution: While the Public Prosecutor formally represents the state, you, through your lawyer, can assist them. You can bring the fact of the accused’s absconding to the prosecutor’s attention and provide them with your application and evidence.
• Ensure Action is Taken: Your application acts as a catalyst, formally bringing the issue on record and compelling the court and the police to take the next legal steps as prescribed under the BNSS. It ensures the case does not lie dormant simply because the accused is untraceable.

How the police behave in such cases

The police are the primary agency for executing court-issued warrants. Their role is procedural and fact-based.

• Execution of Warrant: Initially, the police will make genuine attempts to locate and arrest the accused at their known addresses and locations.
• Filing of Report: If they are unable to find the accused, they are mandated to submit a report to the court detailing the steps taken and stating that the accused is untraceable or absconding. This is often referred to as an “unexecuted warrant report.”
• Executing the Proclamation: Once the court issues a proclamation under Section 84 BNSS, the police are responsible for executing it. This involves publicly reading it in the accused’s town or village, affixing a copy to their house and the courthouse notice board, and sometimes publishing it in a daily newspaper circulating in the area.

FAQs people normally have

Can a complainant file an application to declare someone a proclaimed offender?

Yes. While the final order is passed by the court, a complainant can and should file an application to initiate the process. This application brings the necessary facts to the court’s attention and requests that it exercise its powers under Section 84 of the BNSS.

Is it a ‘suo motu’ power of the Court only?

The power to issue a proclamation is vested in the court, but it is typically exercised based on a report from the police or an application by the complainant/prosecution. It is not exclusively a suo motu power; the court can be moved to act through a formal application.

What happens after a person is declared a Proclaimed Offender?

Being declared a Proclaimed Offender under Section 84(4) has severe consequences. The person’s property can be attached and sold under Section 85 BNSS. Furthermore, harbouring a proclaimed offender is a separate criminal offence. It also makes it extremely difficult for the accused to seek legal remedies like anticipatory bail.

What evidence is required?

The primary evidence is the police report confirming that the arrest warrant could not be executed because the accused is untraceable. Additionally, any evidence provided by the complainant, such as affidavits from neighbours or proof of the accused having left their residence to evade arrest, can strengthen the application.

How long will the investigation take?

This is a procedural matter rather than an investigation. The law specifies a clear timeline. As per Section 84 of the BNSS, the proclamation must give the accused a minimum of 30 days to appear in court from the date of its publication. The entire process, from filing the application to the issuance of the proclamation, can take a few weeks to a couple of months, depending on the court’s workload and the speed at which the police file their report.

Advocate Sudhir Rao, Supreme Court of India