Proclaimed Offender – Is it another disqualification to act as a Director?

Section 274 of the Companies provides for disqualification a person to act a Director of a Company. It provides that “a person shall not be capable of being appointed director of a company, if

a)     he has been found to be of unsound mind by a Court of competent jurisdiction and the finding is in force;

b)     he is an undischarged insolvent;

c)      he has applied to be adjudicated as an insolvent and his application is pending;

d)     he has been convicted by a Court of any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months, and a period of five years has not elapsed from the date of expiry of the sentence;

e)      he has not paid any call in respect of shares of the company held by him, whether alone or jointly with others, and six months have elapsed from the last day fixed for the payment of the call; or

f)       an order disqualifying him for appointment as director has been passed by a Court in pursuance of section 203 and is in force, unless the leave of the Court has been obtained for his appointment in pursuance of that section;

g)     Failure to file Annual Accounts and Annual Returns or repayment of deposits, debenture or payment of dividend.

In case of a Private Limited Company its Articles may provide for additional disqualifications in addition to those contained in Section 274 of the Act.

Section 303 (2), inter alia, provides that when a person is appointed as a Director of a Company, the particulars of such appointment shall be furnished in prescribe Form 32 with the concerned Registrar of Companies within 30 days of such appointment. The said Form 32 requires for the verification of the details filled therein by the authorized person and the certifying professional. Recently the Form 32 was amended vide Notification GSR 848 (E) dated 20-10-2010, which provides an additional verification with regard to the proclamation of any offence against the appointed director. The extant verification clause provides as follows:

“It is also confirmed that the appointed director (s) whose particulars are given above, has given a declaration to the Company that he / she has not declared as a Proclaimed offender by any Economic Offence Court or Judicial Magistrate Court or High Court or any other Court”.

By virtue of this amendment, the authorised person of the Company who is signing the form and the certifying professional, is required to verify that appointed director (s) has / have given required declaration to the Company that he is not a Proclaimed Offender. Now, let us understand the meaning of Proclaimed offender and other provisions connected with it.

Proclaimed Offender Defination : The expression “proclaimed offender” includes any person proclaimed as an offender by any Court or authority in any territory in India to which this Code does not extend, in respect of any act which if committed in the territories to which this Code extends, would be an offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450 and 457 to 460 (both inclusive)

Who is a Proclaimed Offender?

If any Court has reason to believe that any person against whom a warrant of arrest 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 30 days from the date of publishing such proclamation. Where a proclamation published is in respect of a person accused of certain specified heinous offences and such person fails to appear at the specified place and time required by  the proclamation may pronounce him a ‘Proclaimed Offender’ and make a declaration to that effect under Section 82 of CrPC.

What are the offences for which the Court may declare an absconder to be a Proclaimed Offender?

The Court may pronounce an absconder as a proclaimed offender if he is accused of any of the following offences:

  • Murder; Culpable homicide not amounting to murder
  • Kidnapping or abducting in order to murder; Kidnapping or abducting in order to subject person to grievous hurt, slavery etc.
  • Committing theft after making preparation for death, hurt or restraint in order to commit the theft; Committing robbery or attempting to do so; Causing hurt in committing robbery; Committing dacoity/ dacoity with murder; Committing robbery/dacoity with attempt to cause death or grievous hurt; Attempting to commit robbery/dacoity when armed with deadly weapon; Preparing to commit or assembling to commit dacoity; Belonging to a gang of dacoits,
  • Causing mischief by fire or explosive substance with intent to destroy house, etc.
  • Committing house-trespass in order to commit offence punishable with death; Causing grievous hurt/death while committing lurking house-trespass or house-breaking; Being member of group that causes grievous hurt/death while committing lurking house-trespass or house-breaking by night.

What is the language of the Proclamation?

PROCLAMATION REQUIRING THE APPEARANCE OF A PERSON ACCUSED

Whereas complaint has been made before me that ______ (name, description and address) has committed or is suspected to have committed) the offence of _______ punishable under ______ section of the Indian Penal Code, and it has been returned to a warrant of arrest thereupon issued that the said ________ (name) cannot be found, and whereas it has been shown to my satisfaction that the said ________ (name) has absconded or is concealing himself to avoid the service of the said warrant); Proclamation is hereby made that the said _______ of ________ is required to appear at ________ (place) before this Court (or before me) to answer the said complaint on the ________ day of _________

Dated, this _______ day of _______, 20___

(Seal of the Court) (Signature)

How is the Proclamation published?

The proclamation is published as follows: -

It is publicly read in some conspicuous place of the town or village in which such person ordinarily  resides

  • It is affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village
  • A copy of the proclamation is affixed to some conspicuous part of the Court-house

Who can arrest a Proclaimed Offender?

The primary responsibility for securing the arrest of a proclaimed offender rests with the police of the station in which he is a resident. A Proclaimed Offender may, however, be arrested by any police officer without any order from a Magistrate and without a warrant. Any private person may arrest a PO and hand him over without unnecessary delay to a police officer/ nearest police station.

What is the punishment for non-appearance in response to the proclamation under section 82 of the Code of Criminal Procedure?

  • Whoever fails to appear at the specified place and the specified time as required by a proclamation by the Court of the type described above is punishable with imprisonment for a term which may extend to 3 years or with fine or with both, and
  • Where a declaration has been made by the Court pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to 7 years and shall also be liable to fine. s. 174-A IPC

What are the duties of the Village Panchayat etc.?

Every member of the village panchayat, chowkidaar, numberdaar or the officer employed in connection with the affairs of the village and every person residing in the village must communicate to the nearest magistrate / police station the resort to any place within or the passage through such village of any person whom he knows or reasonably suspects to be a proclaimed offender. As soon as a police station receives intimation of the proclamation of a resident of its jurisdiction, the sarpanch and chowkidaar of the village where the PO resides or has relatives or friends that he is likely to visit, are informed about the same.

Can a Proclaimed Offender’s property be attached?

The Court issuing a proclamation may order the attachment of any property belonging to the proclaimed person in order to compel his appearance before the Court. s. 83 CrPC

Is the harbouring of a PO punishable under law?

Yes, whoever knowingly harbours a proclaimed offender to prevent his apprehension is liable to be punished under section 216 IPC with imprisonment upto 7 years in certain cases.

Is the name of the PO displayed?

A list is hung up in the office of each police station and a duplicate is displayed on the police station notice board of all proclaimed offenders who are absconding in cases registered in the home police station or in cases  registered in other police stations, but resident of or likely to visit the home police station. The names of all
such proclaimed offenders are also entered in the Police Station Register No.10 (Surveillance Register). The CRO Branch of the SP Office maintains a register of proclaimed offenders in two parts:

  • Part I contains the names of all residents of the home district irrespective of the districts in which proclaimed. The names shall be entered according to the police station of which the proclaimed offenders are resident.
  • Part II contain the names of all offenders proclaimed in but not resident of the district. These will be entered according to the district of which they are said to be resident.

Are the lists of Proclaimed Offenders revised periodically?

The Superintendent of Police periodically revises the list of POs and the names of persons accused of trivial offences or concerned in cases where from lapse of time, no sufficient evidence is on record or is procurable, are omitted after consultation with the District Magistrate and the SP of the district in which such person was proclaimed. Whenever a PO is arrested intimation is sent to the police station and district of which he was a resident so that his name can be struck off the register/list of POs. The name is likewise struck off on receipt of intimation of the death of the proclaimed person.

Though, the Companies Act, 1956 and rules made thereunder are not explicitly providing for disqualification of a Proclaimed Offended to act as a Director of the Company, we opine that in view of the gravity of offences involved while declaring a person as a proclaimed offender, he should be disqualified to act a Director of the Company.

Disclaimer: The entire contents of this document have been developed on the basis of relevant provisions and are purely the views of the author. Though the author has made utmost efforts to provide authentic information however, the author and the company expressly disclaim all and any liability to any person who has read this document, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this document.

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2 comments

1 sireesha { 03.13.12 at 12:54 am }

The Article is very good and informative.
I would like to comment on the opinion arrived at.
Considering the punishment attached to the proclaimed offender i.e. is imprisonment for a term which may extend to 7 years and shall also be liable to fine. s. 174-A IPC, he may be brought under the section 274(1)(d) –“i.e. a person cannot be appointed as a Director – if he has been convicted by a Court of any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months, and a period of five years has not elapsed from the date of expiry of the sentence” and treated as a disqualified director.

2 R.Ramakrishna Gupta { 05.08.12 at 1:24 pm }

Dear Sireesh

Thanks for your comments and we may recommend to the law making agencies to consider this.

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