Who is an absconder?

absconder

Meaning

As per the Black’s Law Dictionary, the term absconder means running away from law to make oneself absent in an attempt to avoid the legal process. In the case of Jyoti Prasad v. State of Haryana [1] has held that knowledge displays the evidence that the person concerned was aware of his actions. Therefore, in order to determine whether a person has absconded it is pertinent to know that he had the required knowledge of the circumstance and had received notice to appear before the court on that requested date, time and venue. The knowledge reflects the person’s state of mind being conscious of the fact of the situations. [2]

When is a person declared an Absconder?

Under the eyes of the law when a person does not appear for arrest or in court or quits the country after acknowledging an issuance of trial is made against him, leading to frustrate the court proceeding it is presumed that he has absconded. In other words, when a person with an intention to evade the trial proceeding against him which results in delay of justice it is sufficient to say that the said accused has absconded in order to flee from justice. It is pertinent to note that if a person merely went to distant location before the issuance of warrant he is not said to be presumed as absconder.

What are the consequence of absconding under Indian Laws ?

Issue of proclamation

Old pending matters in occur mostly due to non-appearance of the accused. In order to provide remedy and reduce the pendency, the Code of  Criminal Procedure governs the laws regarding absconding of arrest under section 82 (1) where if the court is satisfied that they have reason to believe that a person with the intention to avoid the execution of arrest warrant has absconded then in such situations the court may publish a written proclamation requiring such person to appear before the court at the specified time and venue which shall be issued in not less than thirty days from the date of proclamation.

The term absconded necessarily implies when a person leaves his permanent residence in order to conceal himself. The court has to be satisfied that accused has left his or her permanent residence or have intentionally evaded from arrest before declaring the accused as an absconder and issuing proclamation[3]. It shall be pertinent to note that the expression “reason to believe” as per section 82 of Criminal Procedure Code clarifies that the court has to be subjectively satisfied that the accused has absconded to avoid arrest.

Attachment of Property

Apart from that the court also has to record reasons, statements of the witness and evidences in writing before issuing a proclamation that person who is presumed to be absconding.[4] The court has discretion to attach to issue to attach the property of the absconder if they have a reason to believe that the absconder has the intention to dispose his or her property from the local jurisdiction the court. Such reasons shall be attached with an affidavit or shall make any other enquiry as deemed may fit by the court based on the facts of the case and conducts of the accused which shall be recorded as well for the purpose of proclamation.

Sale of property

In cases where the court has successfully attached the property of the absconder, they may on being satisfied that the accused has not appeared on the specified time limit in the proclamation can sell the property under the attachment as disposal of Government after the expiration of six months from the date of attachment and until the disposal of claims of objections if in case have been made by the Magistrate.

If the absconded person against whom the proclamation is issued appears at the specified time, the court may order releasing the property from the attachment as per the section 85 of Criminal Procedural Code.

Confession by accused not to be used after execution of the case

In cases of appearance of the absconded accused, any confession made by him/her shall not be used against him after the said accused placed on trial proceeding as he/she had no opportunity of cross-examination.

Recorsing of medical evidence

In case the absconder is accused of offence which causes death or grievous hurt then the court may record the evidence report made by the medical officer. Such cases shall be punishable by death or life imprisonment after making the appropriate inquiry of the same. 

What is the procedure to be followed during the investigation of an absconder?

The following are the steps to be taken while investigating an absconder and after filling the charge-sheet  :-

Step 1 : A summon issued by the investigating officer against the absconder in order to secure his presence simultaneously all reports are searched and collected by the investigating officer.

Step 2 : In cases where after all the reasonable efforts failed and the accused is not arrested then the investigating officer shall collect all material evidence against the absconded accused and issue a proclamation as per section 82 and proceed further under section 83.

Step 3: All reasonable measures shall be taken by the investigating officer to arrest the accused. The issued proclamation shall be published and the court shall begin with procedure of attaching the property of the accused.

Step 4: The charge-sheet shall be filled only when all the above-mentioned procedure is completed by the investigating officer.

Step 5: On being satisfied with the evidences during the stage of investigation that the accused is absconding with the intention to evade the arrest and frustrate the court by pending the proceeding then the court shall have the authority to declare him or her as absconding accused and record all the reasonable evidence as per the section 299 of the Criminal Procedure Code.

It shall be pertinent to note that during the stage of investigation and issuance of proclamation the warrant of arrest can be issued with the leave of the court. [5]

Step 6: After declaring the absconding accused, the court can proceed with the order to pass suitable order.

Summary

An absconder is a person who evades the warrant of arrest and frustrates the court by pending the trial. In order to declare the a person as absconder the court must have a subjective reason to believe that in spite of various reasonable measures taken to secure the presence of the accused, he/she failed to appear to court at the specified time, date and venue. This event shall also trigger the court to attach and sell the property of the absconder in order to compensate the damages incurred. The court shall also record the reasons before issuance of proclamation. After the investigation officer has satisfied the court with all the reasonable evidence with respect to the absconding accused then the court may pass the order as it may deemed fit against the absconded accused.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

References

1.Joti Prasad v. State of Haryana, AIR 1993 SC 1167 (1169) 

2.Arun Nivalji More v. State of Maharastra AIR 2006 SC 2886

3.RGDHC V/s Rajesh Ranjan Yadav CC No. 33/1 2014

4.Abdul Rehman And Anr. vs State Of Rajasthan RLW 2007 (4) Raj 3418

5.CBI Vs. Dawood Ibrahim Kaskar, AIR 1997 SC 2494

6.CRIMINAL PROCEDURE CODE

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I am Tosani Lal from Amity Law School, Noida. My interest in the field of law started when I had shifted to the Gulf at a very early age. There I observed how laws of different countries govern the conduct of its people and also have a great impact on them. At law school, when I read the Constitution Of India I was deeply impressed by it and realized that to bring the change in the system you have to be part of the system. I have a keen interest in the Human Rights of women and children and with the help of my knowledge in the legal field I want to contribute to improving the deteriorating situation of society to do my bit to bring a positive change in society.