The provisions of this section are mandatory and a proclamation cannot be issued without first issuing a warrant of arrest. Before issuing a proclamation under this section, the Court has to satisfy itself either by examining the serving officer or in any other manner that a warrant of arrest had already been issued and the accused is evading the execution of the warrant by hiding, concealing or absconding.
The word ‘abscond’ does not necessarily mean leaving a place. If a person has gone to a distant place before the issue of the warrant of arrest, he cannot be said to be absconding for evading the execution of the warrant of arrest.
The requirement as to time and place regarding publication of the proclamation being mandatory, should be strictly followed, and if the period fixed is less than 30 days, subsequent proceedings will be invalid.
The accused must be given at last 30 days for appearance. Therefore, if the date fixed for appearance is less than 30 days from the date of publication of proclamation, it will be illegal and all the subsequent proceedings such as attachment or sale of property etc. will be invalid and liable to be set aside.
The Supreme Court in Inderdeo v. State of West Bengal held non-compliance with the requirements of Section 82, would be construed as non-compliance with the procedure established by law within the meaning of Article 21 of the Constitution.
The Allahabad High Court in Kailasli Choudhary v. State of U.P. has expressed a view that before exercising power to publish a written proclamation under Section 82, the Court should consider whether it can exercise its powers of dismissal of the complaint against the accused under Section 203 of the Code.
The High Court of Orissa in Rallav Narayan Lenka v. State of Orissa held that where the warrant of arrest against the accused was quashed by Court, proceedings under Section 82 or 83 ipso facto become null and void and there is no longer any reason for the Court to believe that the petitioner was absconding or concealing himself.