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PROCLAMATION AND ATTACHMENT

Dr. Mohd. Asad Malik

First the court will issue the summon, if summons so issued cannot be served then the court will
issue a warrant. When warrant also cannot be executed, the Court may issue a proclamation
under Section 82 or property of the person wanted may be attached under Section 83 of the
Code.

Thus, The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it
remains unexecuted, there are two more remedies: (i) issuing of a proclamation (Section 82) (ii)
attachment or sale of property (Section 83 and 85).

Section 82 and 83 provides when and under what circumstances proclamation and attachment ,
respectively , can be issued .

According to section 82 ---

1) if any Court has reason to believe, whether after taking evidence or not , that any person
against whom a warrant 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 thirty days from the date of
publishing such proclamation .

2) The proclamation shall be published as follows ---

i.a) it shall be publicly read in some conspicuous place of the town or village in which such
person ordinarily resides;

b. it shall be 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 ;

c. a copy thereof shall be affixed to some conspicuous part of the court house ;

ii) the court may also , if it thinks fit , direct a copy of the proclamation to be published in a daily
newspaper circulating in the place in which such person ordinarily resides .
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3) a statement in writing by the court issuing the proclamation to the effect that the proclamation
was duly published on a specified day , in the manner specified in clause i) of sub -section (2) ,
shall be conclusive evidence that the requirements of this section have been complied with , and
that the proclamation was published on such day .

4) Where a proclamation published under sub-section (1) is in respect of a person accused of an

offence punishable under section 302,304,364,367,382,392 to 400 , 402, 436 449 459 or 460 of
the Indian Penal Code and such person fails to appear at the specified place and time required by
the proclamation , the Court may , after making such inquiry as it thinks fit , pronounce him a
proclaimed offender and make a declaration to that effect .

5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court
under sub-section (4) as they apply to the proclamation published under sub-section (1).

The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the
Court.

It may be noted that unless all the three modes of publication under sub-clauses (a), (b) and (c) of
section 82 (1) Cr.P.C. are proved, there can be no valid publication of the proclamation.

Section 174-A of IPC says that Non-appearance in response to a proclamation under Section
82.- Whoever fails to appear at the specified place and the specified time as required by a
proclamation published under sub-section (1) of Section 82 of the Code of Criminal Procedure,
1973 ( 2 of 1974) shall be punished with imprisonment for a term which may extend to three
years or with fine or with both, and where a declaration has been made under sub-section (4) of
that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment
for a term which may extend to seven years and shall also be liable to fine.

Section 83 of the Cr>P.C. deals with attachment of property of person absconding.

1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing,
at any time after the issue of the proclamation, order the attachment of any property , movable or
immovable , or both , belonging to the proclaimed person .
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Provided that where at the time of the issue of the proclamation the Court is satisfied , by
affidavit or otherwise, by affidavit or otherwise, that the person in relation to whom proclamation
is to be issued , ----

a. is about to dispose of the whole or any part of his property , or

b. is about to remove the whole or any part of his property from the local jurisdiction of the
court.

2) Such order shall authorize the attachment of any property belonging to such person within the
district in which it is made, and it shall authorise the attachment of any property belonging to
such person without such district when endorsed by the District Magistrate within whose district
such properly is situate.

3) If the property ordered to be attached is a debt or other movable property, the attachment
under this section shall be made-

(a) by seizure; or

(b) by the appointment of a receive, or

(c) by an order in writing prohibiting the delivery of such property to the proclaimed person
or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.

(4) if the property ordered to be attached is immovable, the attachment under this section
shall, in the case of land Paying revenue to the State Government, be made through the collector
of the district in which the land situate, and in all other cases-

(a) by taking possession; or

(b) by the appointment of a receiver; or

(c) by an order in writing prohibiting the payment of rent on delivery of property to the
proclaimed person or to any one on his behalf; or

(d) by all or any two of such methods, as the Court thinks fit.
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5) If the property ordered to be attached consists of livestock or is of a perishable nature, the

Court may, if it thinks it expedient, order immediate sale thereof, and in such case, the proceeds
of the sale shall abide the order of the Court.

(6) The powers, duties and liabilities of a receiver appointed under this section shall be the same
as those of a receiver appointed under the Code of Civil Procedure.

It may, however, be noted that although simultaneous issue of a proclamation and the attachment
order are authorised by the section in certain cases, this is an exception, and not the rule.

In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel and Ors. MANU/SC/7334/2008 :

AIR2008SC2675,

this Court observed:

“The provisions contained in Section 82 of the Code of Criminal Procedure were put on the
statute book for certain purpose. It was enacted to secure the presence of the accused. Once the
said purpose is achieved, the attachment shall be withdrawn. Even the property which was
attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant
sale of the property despite the fact that the absconding accused had surrendered and obtained
bail. Once he surrenders before the court and the standing warrants are cancelled, he is no longer
an absconder. The purpose of attaching the property comes to an end. It is to be released subject
to the provisions of the Code. Securing the attendance of an absconding accused, is a matter
between the State and the accused. The complainant should not ordinarily derive any benefit
there from. If the property is to be sold, it vests with the State subject to any order passed under
Section 85 of the Code. It cannot be a subject-matter of execution of a decree, far less for
executing the decree of a third party, who had no right, title or interest thereon.”

Rohit Kumar @ Raju S/O Late Sh. Om v. State Of Nct Delhi Through (2007 Delhi High
Court)

The Delhi High court said that, “The procedure laid down under Section 83 has to be followed
strictly. The key for gathering the intention of the law makers is to be found in Section 82
Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus, except in cases covered by
the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30
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days from the date of the publication under Section 82. The words 'at any time' in Section 83(1)
only mean that if after the issue of proclamation either of the two conditions mentioned in
Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment
may be made without waiting for 30 days to expire. Even in such a case the Court has to record
its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the
proviso to have come into existence.”

In Rahul Dutta Vs. State of Haryana (2011), relied upon by learned counsel for the petitioner,
Punjab and Haryana High Court has observed as under :-

"17. The offences mentioned in Section 82(4) Cr.P.C. are of recurring nature. All the persons,
who are absconding or concealing themselves to evade execution of warrants of arrest, could be
proclaimed persons but they could be declared a "proclaimed offender" only under the provisions
of the IPC which are mentioned in Section 82(4) Cr.P.C. There is stark distinction between a
proclaimed person and a proclaimed offender and for that reason, there is a difference of
punishment provided under Section 174-A IPC as it provides imprisonment which may extend
upto three years or with fine or with both regarding a person who has been proclaimed in terms
of Section 82(1) Cr.P.C. and the imprisonment which may extend upto seven years and also with
fine in respect of a person who is declared a "proclaimed offender" under Section 82(4) Cr.P.C.”

Again in Sanjay Sarin Vs. State (Union Territory, Chandigarh) (2012 SCC OnLine P&H
22817), Punjab & Haryana High Court has observed as under :-

"10. A simultaneous reading of section 82 Cr.P.C. and 174A IPC would clearly point to the
situation where the persons against whom proclamation is issued under section 82(1) Cr.P.C.
would be divided into two categories. The first category would be of the persons who are
accused of an offence other than the one mentioned in section 82(4) Cr.P.C. and the second
category of the persons accused of an offence mentioned in section 82(4) Cr.P.C. For these two
categories of persons, punishment is differently provided by section 174A IPC.”

There is difference between section 82 (1) and 82 (4). Before 2005 there was no difference but
now any accused can only be declared as proclaimed offender when he is accused of offences
mentioned in section 82 (4). Other than these offences mentioned in section 82 (4) accused can
only be declared as proclaimed person.
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Section 174A of the I.P.C. has two parts 'the first part of the Section relates for the punishment
against a person against whom proclamation has been issued and published under sub-section (1)
& (2) of Section 82 of the Code and the punishment is up-to three years or with fine or with both
whereas 'the second part of the offence relates to a declaration made under sub-section (4) of
Section 82 under which a person has been pronounced as proclaimed offender and the
punishment is severe than the first part which may extend to 7 years and shall also be liable to
fine.

Section 82 and Anicipatory Bail

In Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, this Court considered the scope of
granting relief under Section 438 vis-à-vis to a person who was declared as an absconder or
proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held that when the
accused is “absconding” and declared as a “proclaimed offender”, there is no question of
granting anticipatory bail. We reiterate that when a person against whom a warrant had been
issued and is absconding or concealing himself in order to avoid execution of warrant and
declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the
relief of anticipatory bail.

Deepak Kumar@ Deepak Saha v. State, 2017 SCC OnLine Del 6920, decided on 07.02.2017

Delhi High Court: The Court dealt with an important question of law in criminal proceedings in
a case, where the process under Sections 82 and 83 CrPC was issued against the accused. While
the statement of process server under Section 82 CrPC was recorded by the CMM, the process
couldn’t be completed under Section 83 for want of any property in the name of petitioner.
Section 82 deals with proclaiming a person as proclaimed offender if he/she is absconding while
Section 83 provides for attachment of the property of the person.

The question before the court was whether Section 174-A IPC could be added by the
Investigating Officer before declaring the petitioner to be a proclaimed offender?

To this question, the Court responded in negation. The Court held that the IO had added the
charge of Section 174-A IPC much before the date when the order of his proclamation as
proclaimed offender had been issued and said that he had no power to do so. Justice I.S. Mehta
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observed that the bare reading of the section was making it amply clear that proceeding under
Section 174-A could only be started only after the person is declared as proclaimed offender and
thus, allowed the petition.

Section 84 Cr.P.C. Claims and objections to attachment.Previous:

(1) If any claim is preferred to, or objection made to the attachment of, any property attached
under section 83, within six months from the date of such attachment, by any person other than
the proclaimed person, on the ground that the claimant or objector has an interest in such
property, and that such interest is not liable to attachment under section 83, the claim or
objection shall be inquired into, and may be allowed or disallowed in whole or in part:

Provided that any claim preferred or objection made within the period allowed by this sub-
section may, in the event of the death of the claimant or objector, be continued by his legal
representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which
the order of attachment is issued, or, if the claim or objection is in respect of property attached
under an order endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial
Magistrate of the district in which the attachment is made.

(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or
made:

Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make
it over for disposal to any Magistrate subordinate to him.

(4) Any person whose claim or objection has been disallowed in whole or in part by an order
under sub-section (1) may, within a period of one year from the date of such order, institute a suit
to establish the right which he claims in respect of the property in dispute; but subject to the
result of such suit, if any, the order shall be conclusive.

Section 85 Cr.P.C. Release, sale and restoration of attached property.Previous

(1) If the proclaimed person appears within the time specified in the proclamation, the Court
shall make an order releasing the property from the attachment.
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(2) If the proclaimed person does not appear within the time specified in the proclamation, the
property under the attachment shall be at the disposal of the State Government; but it shall not be
sold until the expiration of six months from the date of the attachment and until any claim
preferred or objection made under section 84 has been disposed of under that section, unless it is
subject to speedy and natural decay, or the Court considers that the sale would be for the benefit
of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has
been at the disposal of the State Government, under sub-section (2), appears voluntarily or is
apprehended and brought before the Court by whose order the property was attached, or the
Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did
not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he
had not such notice of the proclamation as to enable him to attend within the time specified
therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only
thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after
satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.

There are three possibilities if property attached:

(a) Release of property

(b) Sale of property
(c) Restoration of property

Section 86. Appeal from order rejecting application for restoration of attached
property.Previous

Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to
deliver property or the proceeds of the sale thereof may appeal to the Court to which appeals
ordinarily lie from the sentences of the first-mentioned Court.
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Remedies:

The following four remedies are available to an aggrieved person in this connection:

(i) Remedy by way of a claim or objection under S. 84 (see above).

(ii) Remedy by way of civil suit to establish a claim. (See S. 84, above)

(iii) An appeal can be filed under S. 86.

(iv) Under certain circumstances, a revision application will lie under S. 397.