Proclamation and Attachment

FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILLMENT OF THE COURSE

TITLED

Criminal Law-II

SUBMITTED TO SUBMITTED BY

Ms. Preety Anand NAME- SHAURYA SHUKLA

Assistant Professor Of Criminal Law-II COURSE- B.A.LLB(HONS.)

ROLL NO.- 2160, 4th SEMESTER

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

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 DECLARATION BY CANDIDATE

I, hereby, declare that the work reported in B.A. LL.B (Hons.) Project report entitled
“Proclamation and Attachment ” submitted at Chanakya National Law University is an
authentic record of my work carried out under supervision of Ms. Preety Anand. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my project work.

NAME: SHAURYA SHUKLA

ROLL NO: 2160

COURSE: B.A. LL.B. (Hons.)

SEMESTER: 4th

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 ACKNOWLEDGEMENT

I would like to thank my faculty Ms. Preety Anand whose guidance helped me a lot in
structuring my project.I owe the present accomplishment of my project to my friends, who
helped me immensely with materials throughout the project and without whom I couldn’t have
completed in the present way.I would like to extend my gratitude to my parents and all those
unseen hands that helped me out at every stage of the project.

NAME: SHAURYA SHUKLA

ROLL NO: 2160

COURSE: B.A. LL.B. (Hons.)

SEMESTER: 4th

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 CONTENTS
Declaration by candidate………………………………………………………………....2

Acknowledgement…………………………………………………………………….….3

Aims and Objective……………………………………………………………………....5

Research Methodology…………………………………………………………………...5

Hypothesis………………………………………………………………………………..5

Research Questions……………………………………………………………………….5

Limitations of Study……………………………………………………………………...5

Mode of Citation………………………………………………………………………….5

Introduction…..…………………………………………………………………………..5

What is Proclamation?……………………………………………………………………5

Conditions to make a proclamation.……………………………………………………...8

The manner in which proclamation shall be made……………………………………....9

Punishment for non-appearance after the issue of Proclamation u/s 82 of the CrPC…….9

Attachment of property of person absconding……………………………………………9

Claims and Objections to attachment…………………………………………………...11

Judgments……………………………………………………………………………….14

Conclusion……………….……….…………….……………………………………….18

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AIMS AND OBJECTIVES

To analyze the provisions of CrPC dealing with the procedure of proclamation and attachment
and present an analysis of the same followed by a critique.

RESEARCH METHODOLOGY

This research project is solely based on doctrinal type of research work.

HYPOTHESIS

The Researcher believes that the CrPC has established the procedure to handle the attached
property very elaborately.

RESEARCH QUESTIONS

 Where is proclamation and attachments defined in the code of criminal procedure, 1872?
 What are requirements and conditions that necessitate proclamation and attachment?
 Discuss some guiding precedents regarding proclamation and attachment?

LIMITATION OF STUDY

The researcher had time limitation while making this project.

MODE OF CITATION
The researcher has followed 20th edition of Bluebook for citation.

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Introduction:-

A majority of the criminals elope after the commission of a crime, to escape from the law. Had it
been the solution to save oneself from being punished for a crime or a wrong, commission of
crimes would have ended up becoming very common. However, there are several occasions
when criminals and defaulters surrender themselves before the Police or the Court. It is often
because they realise their mistake and other times, it is because the Court procures something
that is most valuable to them- ‘their property’. 

The Code of Criminal Procedure (CrPC) is a procedural law. It elucidates the manner in which
trials shall be conducted. The property is attached to attract the physical presence of an accused
when they do not present themselves after the issuance of notices and warrants. But there are
several underlying factors like time, reasons behind the absence of the person, nature of property
attached, interested parties to a property and so on. Through this paper, the researcher will try to
expound the provisions governing proclamation and attachment of property under CrPC.

What is Proclamation?:-

In cases where a summons for the appearance of the accused person is to be issued, but if the
court has reason to believe that the accused has absconded or will not obey the summons, or in
case where the accused person on whom the summons is duly served for appearance fails to
appear without offering any excuse for non-appearance, a warrant of arrest can be issued. Now in
cases where a warrant of arrest has been issued against an accused person and there are reasons
to believe that the accused person has absconded or is concealing himself to avoid the execution
of the warrant, the court may publish a written proclamation requiring such person to appear
before it and may attach his property. If the accused person fails to appear before the court as
required by the proclamation the property- attached would be at the disposal of State
Government and could be sold.

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This stringent provision would exert considerable pressure on the accused and would impel him
to appear before the court in order to avoid deprivation of his property. These matters have been
provided in detail by Sections 82 to 86. Section 821 which provides for the publication of the
proclamation for the absconding accused person, is as given below:

82. (i) 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.

(3) A statement in writing by the Court issuing the proclamation to the effect that the

1
Code of Criminal Procedure §82 (1973).

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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.

The terms of the above section are mandatory and imperative, and a proclamation cannot be
issued without first issuing a warrant of arrest. Therefore if there is no authority to issue a
warrant of arrest, the issuing of proclamation would be obviously illegal. Before issuing a
proclamation the court is to satisfy itself by examining the serving officer or in any other manner
that a warrant of arrest had already been issued and that the accused is absconding, concealing,
or evading the execution of the warrant. Also, he should consider exercising his powers for
dismissal under Section 2032 before he invokes his powers under Section 82 The word
“abscond” does not necessarily mean leaving a place. Its ordinary and etymological sense is to
“hide oneself’. When in order to evade the process of law a person is hiding from (or even in) his
place of residence, he is said to “abscond”. A person cannot said to abscond to evade the
execution of warrant when he had gone to a distant place before the issue of the warrant. The
section must be strictly construed as the failure to obey the orders in this section has penal
consequences.

Conditions to make a Proclamation:-

Under Section 82(4) IPC3, when a person accused of commission of the offences punishable

under the below-stated Sections of the Indian Penal Code of 1860 (IPC) fails to appear before the
Court as required under the proclamation, the Court may, if it deems fit, declare such person as a
‘proclaimed offender’ and make an announcement to that effect. The offences are:

 Section 302– Offense of murder.

 Section 304– Offense of culpable homicide not amounting to murder.
 Section 364– Offense of kidnapping or abducting to commit murder.
 Section 367– Offense of kidnapping or abducting in order to subject a person to grievous
hurt, slavery, etc.

2
Code of Criminal Procedure §203(1973).
3
Code of Criminal Procedure §82(4)(1973).

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  Section 382– Offense of theft and preparation made for causing death, hurt or restraint in
order to the committing of the theft.
 Section 392– Offense of robbery.
 Section 393– Offense of attempt to commit robbery.
 Section 394– Offense of Voluntarily causing hurt in committing robbery.
 Section 395– Offense of dacoity.
 Section 396– Offense of dacoity with murder.
 Section 397– Offense of robbery, or dacoity, with an attempt to cause death or grievous
hurt.
 Section 398– Offense of attempt to commit robbery or dacoity when armed with a deadly
weapon.
 Section 399– Offense of making preparation to commit dacoity.
 Section 400– Offense of belonging to the gang of dacoits.
 Section 402– Offense of assembling for the commission of dacoity.
 Section 436– Offense of mischief by fire or explosive substance with intent to destroy a
house, etc.
 Section 449– Offense of house-trespass in order to commit an offence punishable with
death.
 Section 459– Offense of grievous hurt caused whilst committing lurking house-trespass
or house-breaking.

If the person fails to present himself/herself before the Court after the period which was granted
to them, then the Court may declare them as a proclaimed offender.

The manner in which Proclamation shall be made

Sub-section 2 of Section 82 of the CrPC specifies the manners in which a proclamation can be
made. They are as follows:

 The proclamation shall be read out publicly in a noticeable area that falls under the
vicinity of the residential address of the person or it shall be attested to some part of
the person’s house or on a nearby building. Either of those should be attested to
someplace which is observable; or
 It shall be attached to a noticeable place in the Court. 
 If the Court deems fit, it might give orders for publishing the proclamation on the
newspaper which is circulated in the vicinity of the person’s residence.

Punishment for non-appearance after the issue of Proclamation u/s 82 of the

CrPC

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The Criminal Law (Amendment) Act of 2005 inserted Section 174-A4 in the IPC. It states that
when a person fails to abide by the terms of the proclamation u/s 82(1) of the CrPC, he/she shall
be punished with imprisonment for a period of maximum three years. 

In case of non-abidance to the proclamation issued under offences laid down u/s 82(4) of the
CrPC and the person has been announced as a proclaimed offender, the punishment shall be
imprisonment for a term that may extend to seven years and a fine could also be imposed on
same.

Attachment of property of person absconding :-

The property of the person against whom a proclamation is issued under Section 82 can be
attached (and later disposed of) in order to compel his appearance in court. This has been
provided by Section 835 as follows:

83. (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:

Provided that where at the time of the issue of the proclamation the Court is satisfied, by
affidavit or otherwise, that the person in relation to whom the 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, it may order the attachment simultaneously with the issue of the

proclamation.

(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 authorize the attachment of any property belonging to

4
Code of Criminal Procedure §174-A (1973).
5
Code of Criminal Procedure §83 (1973).

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such person without such district when endorsed by the District Magistrate within whose district
such property 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 receiver; or

(e) by an order in writing prohibiting the delivery of such property to the

proclaimed person or to anyone on his behalf; or

Government, be made through the Collector of the district in which the land is 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,

(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.

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(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, 1908 (5 of 1908).

The court issuing the proclamation can attach the property at any time and it is not necessary to
wait till the expiry of the time prescribed in the proclamation for appearance. It has been ruled by
the Allahabad High Court that unless 30 days have elapsed after the proclamation was issued
under Section 82 no attachment could be ordered under Section 83. The court, however, is
required to record reasons while issuing the order of attachment. If the conditions mentioned in
the proviso to sub-section (i) are present, the order of attachment can be passed simultaneously
with the order made for the publication of the proclamation. If any person other than the
proclaimed person is in any manner aggrieved by the order of attachment, Section 84 provides:

84. {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

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(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.

Claims and Objections to attachment

Situations relating to any sort of claims or objections with respect to the property to be attached
are specified under Section 84 of the CrPC.

When within six months from the date of attachment:

 Any claim preferred to any property attached under Section 83 of the Act; or
 Any objection as to the attachment of the property by any person who has an interest in
the property. 

Such a person cannot be the person who is absconding and the interest so vested in the property
shall be unrelated to the attachment of property under Section 83. Only then will a claim or
objection will be acknowledged or unacknowledged wholly or in part, after being inquired into.

Death of claimant or objector

In the event of the death of the claimant or objector within the period allowed for preferring
claims and raising objections, their legal representatives can act on their behalf.

In which Court could the claims be preferred and objections are made?

Claims can be preferred and objections can be made in the same Court which ordered attachment
of the property. If the order was issued under Section 83(2) of CrPC6, then claims and objections
shall be made in the Court of the Judicial Magistrate who issued the order of attachment. It shall

6
Code of Criminal Procedure §83(2) (1973).

13
be noted that the said sub-section would be enforced only when the property is outside the
jurisdiction of the Court which issued the proclamation of the absconding person.

Inquiry 

All the claims preferred and objections made would be subjected to an inquiry in the Court
where they are made. If they were made in the Court of a Chief Judicial Magistrate, then he may
assign the work to his subordinate Magistrate.

Disallowing a claim or an objection

An objection or claim could be disallowed either entirely or partly for any of the reasons stated
in Section 84(1). If that happens, within a period of one year from the date of the order
disallowing the preferred claim or objection was passed, the claimant or objector could institute a
suit to gain his rightful interest in the property. But the order of such suit would be conclusive
and no further remedy could be granted to the claimant or objector.

Release, Sale, and Restoration of attached property

The property that is attached by the issuance of an order by the Court does remain acquired
forever. Depending on conditions, there are different ways of handling the attached
property. Section 857 of the CrPC enlightens how the properties could be dealt with.

Release of Property

When the person who was absconding presents himself/herself before the Court within the time
period provided to him/her in the proclamation, then the attached property of such person has to
be released by the Court through an order.  

Sale of Property

When the person who was absconding does not present himself/herself before the Court within
the time stipulated in the proclamation, the attached property goes under the disposal of the State
7
The Code of criminal Procedure §85 (1973).

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Government. However, the State Government cannot sell the attached property for a period of
six months from the date of such attachment and until any claim preferred or objection made
with respect to the attached property is disposed of.

The only exception to this would be perishable goods. In cases when the attached property
consists of perishable goods, the Court issues an order for sale of perishable goods or other
goods which it deems fit on the assumption that it is for the benefit of the owner of the attached
property.

Restoration of Property

If the person whose property is attached, is apprehended to the Court or appears voluntarily
before the Court within a period of two years from the date of attachment of property, the
procedure will be as follows:

1. The person must present himself/herself before the Court that issued the order of
attachment of property or any Court which is superior to that Court.
2. The person must prove that they did not intend to conceal themselves to avoid the
execution of the warrant issued against them.
3. The person must prove that they did not have knowledge of the issue of the order of
proclamation so as to attend to their property.

If the above is proved before the Court, then the property so attached should be delivered back to
the person. In case the property is sold, then the net proceeds from the sale should be granted to
that person.

Lastly, if the property is sold partly, then the net proceeds from the part sold and residue of the
property shall be delivered back to the person only after recovering all expenditure incurred as a
consequence of attachment of the property.

Appeal from order rejecting the application for restoration of property

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Section 868 of the CrPC states that any person dissatisfied by the denial of the Court to deliver
the property or the proceeds of sold property which such person was entitled to under Section 85
of the said Act, then that person could file an appeal in the Court where the appeals of the first-
mentioned Court are generally filed. 

Judgments

Vimalben Ajitbhai Patel v. Vatsalabeen Ashokbhai Patel and Ors.

In the case of Vimalben Ajitbhai Patel v. Vatsalabeen Ashokbhai Patel and Ors., the appellants
were the father-in-law and mother-in-law of the respondent (Sonalben Rameshchandra Desai).
The respondent separated from her husband. After a year, she filed a complaint petition against
her husband and the appellants for the offences of abetment to the commission of a crime and
criminal breach of trust under Sections 114 and 406 of the IPC respectively. The appellants were
granted bail on the condition that they would not leave India without the permission of the Court.
However, the appellants filed an application in Court citing health issues of father-in-law, to seek
permission to leave India. They left India before their application could be processed. 

Later, the respondent filed an application in the High Court for cancellation of their bail, which
was accepted by the High Court, directing the Metropolitan Magistrate to issue a Standing
Warrant against the appellants upon their return to India.

The Court held that Section 82 of the CrPC was enacted to secure the presence of the accused
before the Court. On the achievement of the said purpose, the attachment shall be withdrawn and
the property that had been attached shall be restored for the CrPC does not provide for the sale of
the property after the proclaimed offender has surrendered or has obtained bail. This is so
because once an accused surrenders before the Court and their standing warrant(s) is/are
cancelled, they are no longer an absconder and the entire purpose behind attaching their property
is achieved. 

8
The code of criminal procedure §86 (1973).

16
The Court observed that once the person is no more absconding, the matters pertaining to the
attached property shall remain between the accused and the State and the Complainant shall
derive no benefit therefrom. In this case, the complainant is the daughter-in-law of the
respondent and she contended that she is entitled to a share in the property attached. In the event
where the property has to be sold, it is vested upon the State to do so from an order under Section
85 of the CrPC. It cannot depend on the execution of a decree, especially the ones of a third party
who have no title, right or interest in the said property9.

Moideen v. The Sub Inspector of Police

In Moideen vs The Sub Inspector Of Police, petitioner was the sixth accused in the case and was
absconding. As a result, his case was separated from the other accused persons and the
provisions of Sections 82 and 83 of the CrPC were applied and his property was attached.
Thereafter, the petitioner surrendered before the Magistrate and was later released on bail. The
petitioner filed a petition u/s 85(3) of the CrPC for the release of his attached property since he
was released on bail and was no longer absconding. The said appeal was dismissed by the
Magistrate and later, by the Sessions Judge too. The dismissal is challenged in this revision. The
facts of the case are undisputed. 

The issue was whether an absconding accused, whose property is attached u/s 83 of the CrPC,
can file an application after the expiry of two years from the date of such attachment to release
the said property under the provisions of Section 85 of the Code?

The Court held that an absconding accused is entitled to get the property released within the time
period specified in the proclamation or within two years from the date of attachment of property
given that he/she establishes that they were not absconding or concealing themselves nor did
they receive the notice of proclamation to enable them to appear before the Court on time. In the
expiration of the aforementioned period, the accused would not be entitled to file an application
of the release of property u/s 85(3) of the CrPC. Here, the petitioner failed to establish that he

9
Vimalben Ajitbhai Patel vs Vatslabeen Ashokbhai Patel And Appeal (civil) 2003 of 2008

17
was not absconding and did not receive the notice of proclamation, making him unqualified to
get his property released. The petition was therefore dismissed10.

                    

Vinod Khanna v. State

In the case of Vinod Kumar Khanna v. State, the notice of the order of proclamation had to be
sent to the petitioner but the same could not be done since the petitioner was in a foreign country
at the time. Therefore, the notice was sent to an official of the company where the petitioner was
a chairman at. The said official gave an intimation of the appearance of the petitioner before the
Investigating Officer on his failure to do so. An arrest warrant was issued against the petitioner
which also remained unexecuted. Finally, the Court issued a proclamation under Section 82 of
the CrPC and ordered the attachment of property under Section 83 of the Code. Thereafter, the
petitioner filed an appeal against the issuance of a proclamation by virtue of Section 482 of the
CrPC. The Counsel argued on behalf of the petitioner that the petitioner did not attempt to escape
the warrant of arrest. Further, he claimed that the arrest warrant never came into his knowledge
and therefore, he could not have possibly absconded. 

The Court held that such facts were insufficient to conclude that the petitioner did not abscond
from the Court for the reason that petitioner had several officials who were working in India and
it was non-convincible that he would not have been apprised by anyone of the notices and issue
or arrest warrant against him. Further, the petitioner had begun the execution of a power of
attorney to dispose of his assets to prevent the attachment of property. These facts and acts of the
petitioner could lead to the conclusion that the petitioner was aware of all notices and the arrest
warrant and evaded the same, and could be said to have absconded. Thus, this case makes it
evident that the knowledge of the issuance of an order of appearance in any form whatsoever,
followed by a non-appearance, is essential to conclude that a person is absconding11.

10
Moideen vs. The Sub Inspector of Police, Thalassery and Ors. (13.08.2010 - KERHC) : MANU/KE/1310/2010
11
Vinod Kumar Khanna vs State 35 (1988) DLT 167

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Trigala Veeraya v. State

In the case of Trigala Veeraya v. State, the Court laid down that the Government exercises the
same rights as a coparcener in cases where the attachment of a part of joint family property is
concerned.

Conclusion

The CrPC has established the procedure to handle the attached property very elaborately.
Whenever someone has to include attachment of property after a person is proclaimed as an
offender, it shall be noted that time plays a very vital role in the entire process.

The time which is granted to the person to present himself before a Court varies from case to
case. The period to disclose any claims preferred or objections which are to be made extends to 6
months and the person absconding would only become eligible to be entitled to the property if he
is presented before the Court within 2 years from the issue of proclamation. If any of the above
time periods are not accorded with, there is a prominent chance of losing the case out of sheer
carelessness.

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