Absconding Accused, An Omnipresent Phenomenon

From time immemorial, the tendency of an accused person to ‘flee away from justice’ has plagued the Criminal Justice Administration System. With the advent of technology, the world has shrunk, and the ease in which an accused person vanishes into thin air is galloping. To counterbalance this dreadful phenomenon, the Countries around the Globe are working in tandem. This article sketches the broader outlines of the measures taken by the Republic of Indian to tackle this threat.

Absconder

To be an ‘absconder’ in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home.[1]

Issue of Process

The Court after taking cognizance of an offence under Sec. 190 CrPC may proceed to issue a summon or a warrant as contemplated under Sec. 204 CrPC as it may deem fit. However, the proper recourse to resort to non-bailable warrant is expounded by the Supreme Court in Inder Mohan Goswami v. State of Uttaranchal[2] to balance the pendulum swinging between the interest of the society and liberty of the individual.

Further, at pre-cognizance stage i.e., at the stage of investigation also the Court is empowered under Sec. 73 CrPC to issue warrant in non-bailable cases to assist the investigation[3] and to attach the immovable properties of the offender under Sec. 82 r/w 83 CrPC.

The issuance of process is not an empty formality, ‘the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto’[4] because liberty of an individual is at stake. Chapter IV of the Criminal Procedure Code explains the procedure for issuance of process.

Service of Process to Person Residing Abroad

In cases of person residing aboard, the process (summon or bailable warrant) will served through the Ministry of Home Affairs with aid of its counter-parts in the other country under the Mutual Legal Assistance Treaty. In case no such treaty is entered into with the other country, the request may be made by way of assurance for future reciprocity.

In relation to non-bailable warrant, the request will be routed through Ministry of External Affairs because the same would fall within the ambit of extradition. The request for extradition will originate from the investigation agency with approval of Assistant Director (International Police Cooperation Cell), Central Bureau of Investigation to the concerned Magistrate. The Magistrate may grant permission under Sec. 166A CrPC, which shall be routed to the other country through the Joint Secretary, Consular Passport Visa Division, Ministry External Affairs under Sec. 105 K CrPC. Reference in this regard is also Secs. 19 to 21 Extradition Act.

Lookout circular

To secure an absconding accused in relation a cognizable offence, the investigation agency with approval of the concerned officer specified in the Office Memorandum dated 27^th October 2010, Ministry of Home Affairs request the Deputy Director, Bureau of Immigration to issue Lookout Circular. On complying with the conditions specified in the Official Memorandum, issued by the Ministry of Home Affairs, Lookout Circular will be issued to all the Immigration Check Posts in India. In the alternative, the Courts are also vested with the power to direct issuance of Lookout Circular.

The validity of a lookout circular is 1 year and on failure of the originating authority to renew it, the same shall expire. On the other hand, the person against whom the lookout circular is issued can appear before the originating authority voluntarily and cooperate with the investigation or surrender before the concerned Court or challenge the same before Immigration Authority or superior forums.

Red Corner Notice

International Criminal Police Organisation commonly referred to as the Interpol is an inter-governmental organisation consisting of 194 member countries, with an avid objective to control crime by bridging the investigation agencies of the member countries. It has a National Central Bureau in all the member countries to enforce its objectives.

Republic of India is a member country and Interpol Wing of CBI in India acts as the National Central Bureau of Interpol in India. When an offender has escaped the clutches of law by travelling beyond the territories of India and his whereabouts are unknown, a request is raised by Interpol Wing of CBI to Interpol, which shall pass the request to all the National Central Bureaus in the member countries. In the event of finding the accused by the investigation agency of any of the member countries, the accused may be provisionally arrested subject to the respective State policy pending extradition proceedings.

Conclusion

The presence of accused during the Trial is important in order to provide an opportunity to defend himself. Though Sec. 299 CrPC provides for recording of evidence in the absence of the accused, the said evidence will be admitted only to the extent of the unavailability of the witness, when the accused person is brought before the Court. After the accused is secured before the Court, the witnesses will have to testify again in relation to the facts of the case to prove the charges against the accused. This protection/ leniency is taken advantage of by the accused persons and they wilfully evade the process of law, to suffocate justice by delay.

Further, there are cases, where after conviction is recorded and sentence is passed, in appellate stage, while on bail, the accused person absconds. In these circumstances, the presence of the accused is required to serve the sentence.

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[1] Kartarey & Ors. v. The State of Uttar Pradesh, AIR 1976 SC 76.

[2] (2007) 12 SCC 1.

[3] State through CBI v. Dawood Ibrahim Kaskar & Ors., (2000) 10 SCC 438.

[4] Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate, (1998) 5 SCC 749.