INTRODUCTION
To meet the ends of justice, it is critical to produce the accused and other witness or related parties before the court whenever needed.
If the accused is found guilty at the conclusion of the trial, he must be present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be enforced.
There are 6 ways to compel a person to appear in court-
- Summon, (A-chapter VI: CrPC)
- Warrant, (B-chapter VI: CrPC)
- Warrant in lieu of summon, (D-chapter VI: CrPC)
- Proclamation of an absconder, (C-chapter VI: CrPC)
- Attachment of his property, and, (C-chapter VI: CrPC)
- Bond, with or without sureties to appear before a court on a certain date. (D-chapter VI: CrPC)
C- PROCLAMATION AND ATTACHMENT (Section 82- 86)
Proclamation is on the ground of the person being absconding.
The primary meaning of ‘abscond’ is to hide and when a person I hiding from his place of residence, he is said to ‘abscond’.
In Chamber’s Twentieth Century Dictionary, the word ‘abscond’ has been defined as to hide or to quit the country in order to escape a legal process.
SECTION 82: PROCLAMATION FOR PERSON ABSCONDING
SITUATION: 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,
- is concealing himself
- so, that such warrant cannot be executed.
CONSEQUENCE: Such court may publish:
- a written proclamation,
- required him to appear:
- at a specific place, and
- at a specified time (not less than 30 days from the date of publishing such proclamation)
- The proclamation-
- Shall be published as follows-
(a)it shall be publically read, in some conspicuous place of the town or village (in which such person ordinarily resides)
(b)it shall be affixed:
- to some of the 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.
- The court may also-
- direct, a copy of the proclamation to be:
- published in a daily newspaper,
- circulating in a place (in which such person ordinarily resides)
- direct, a copy of the proclamation to be:
- if court thinks fit.
(3)A written statement by the Court issuing the proclamation,
- proclamation, which was duly published:
- on a specified day,
- in the specified manner (under section 82(2)(i))
- shall be conclusive evidence, that-
- the requirements of this section have been complied with, and
- the proclamation was published on such day.
(4) SITUATION: Proclamation published under section 82(1) is in respect of a person accused of an offence, punishable under section 302, 304, 364, 367, 382, 392, 393, 396, 397, 398, 399, 400, 402, 436, 449, 459, or 460, Indian Penal Code, 1860, and
- such person fails to appear:
- at the specified place, and
- time required by the proclamation.
CONSEQUENCE: Court may after making such inquiry (as it thinks fit):
- pronounce him a proclaimed offender, and
- make a declaration to that effect.
(5)Provisions of section 82(2) and (3) shall apply to:
- a declaration made by the Court (under section 82(4), and
- to the proclamation published (under section 82(1).)
CASE: K.T.M.S. Abdul Qader V Union of India AIR 1977 Mad. 386, F.B.
Held: Even though the person left India before the passing of the detention order if they continued to remain outside India with a view to defeat or delay the execution of the detention orders they have to be taken to be absconding persons.
SECTION 83: ATTACHMENT OF PROPERTY OF PERSON ABSCONDING
(1)SITUATION: In order to, record reasons in writing at any time after the issue of the proclamation.
CONSEQUENCE: The Court issuing proclamation under section 82, may order,
- the attachment of any property (movable or immovable or both), belonging to the proclaimed person.
PROVIDED:
SITUATION: At the time of the issue of the proclamation,
- the court is satisfied 9by affidavit or otherwise),
- that the person in relation to whom the proclamation is to be issued:
- is about to dispose poof the whole or any part of his property or
- is about to remove the whole or any part of his property (from the local jurisdiction of the Court).
CONSEQUENCE: The court 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
- without such district when endorsed by the District magistrate within whose district such property is situated.
(3)SITUATION: The property ordered to be attached is a:
- debt, or
- other movable property.
CONSEQUENCE: The attachment under this section shall be made:
- by seizure, or
- by the appointment of a receiver, or
- by a written order prohibiting the delivery of such property to:
- the proclaimed person, or
- any 1 on his behalf, or
- by all or any of such ,methods (as the Court thinks fit).
(4)SITUATION: If the property ordered, to be attached is immovable.
- Case 1: Land paying revenue to the State Government.
- Consequence: The attachment under this section shall be made through the collector, of the district (in which the land is situated).
- Case 2: All other cases.
- Consequence: The attachment under this section shall be made through-
- by taking possession, or
- by the appointment of a receiver, or
- by a written order prohibiting, the payment of rent on delivery of property to the:
- proclaimed person, or
- any on his behalf, or
- by all or any, 2 of such methods as the court thinks fit.
- Consequence: The attachment under this section shall be made through-
(5)SITUATION: If the property ordered to be attached:
- consists of, live stock,
- is of, a perishable nature.
CONSEQUENCE:
- The court may, order immediate sale thereof (if it thinks it expedient),
- 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, 1908 (5 of 1908).
SECTION 84: CLAIMS AND OBJECTIONS TO ATTACHMENT
(1)SITUATION: If any claim is preferred to, or objection made to the attachment,
of any property attached under section 83,
- within 6 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
- such interest is not liable to attachment under section 83.
CONSEQUENCE: The claim or objection:
- shall be, inquired into and
- may be, allowed or disallowed in whole or part.
PROVIDED:
- Any claim preferred or objection made within the period allowed by the section,
- in the event of the death of the claimant or objector,
- may be continued by his legal representative.
(2)Claims or objections, to be preferred or made in which court.
- Case 1: Claims or objections under section 83(1),
- Consequence: It may be preferred or made in the court by which the order of attachment is issued.
- Case 2: Claims or objections in respect of property attached under an order endorsed under section 83(2),
- Consequence: It may be preferred or made in the court of 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:
SITUATION: If it is preferred or made in the court of Chief Judicial Magistrate.
CONSEQUENCE: Chief Judicial Magistrate may make it over for disposal to any magistrate subordinate to him.
(4)SITUATION:
Any person whose claim or objection has been disallowed (in whole or part) by an order under section 84(1).
CONSEQUENCE:
- The person may institute a suit (within a period of 1 year from the date of such order),
- to establish the rights, which he claims in respect of the property, in dispute,
- the order shall be conclusive (but subject to the result of such suit, if any).
SECTION 85: RELEASE, SALE AND RESTRORATION OF ATTACHED PROPERTY
(1)RELEASE-
SITUATION: The proclaimed person appears within the time specified in the proclamation.
CONSEQUENCE: The Court shall make an order releasing the property from the attachment.
(2)SALE-
SITUATION: The proclaimed person does not appear within the time specified in the proclamation.
CONSEQUENCE: The property of the attachment shall be at the disposal of the State Government.
EXCEPTION: Until-
- Situation 1: The expiration of 6 months from the date of the attachment, and
- Situation 2: Any claim preferred or objective made under section 84 has been dispose of under that section,
- Unless: cases in which the court may cause it to be sold whenever, it thinks fit)
- Case 1: It is subject to speedy and natural decay, or
- Case 2: The Court considers that the sale would be for the benefit of the owner.
- Unless: cases in which the court may cause it to be sold whenever, it thinks fit)
(3)RESTORATION-
SITUATION: Within 2 years from the date of the attachment,
- Any person (whose property is or has taken at disposal of the State Government under section 85(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 process to the satisfaction of such court that-
- he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and
- he had not such notice of the proclamation as to enable him to attend within the time specified therein.
CONSEQUENCE:
- Case 1: Such property or if the same has been sold.
- the net proceeds of the sale shall be delivered to him.
- Case 2: Part only thereof has been sold.
- the net proceeds of the sale and the residue of the property shall be delivered to him.
(after satisfying there from all costs incurred in consequence of the attachment)
SECTION 86: APPEAR FROM ORDER REJECTING APPLICATION FOR RESTORATION OF ATTACHED PROPERTY
SITUATION: Any person referred to section 85(3), who is aggrieved by any refusal-
- deliver property, or
- the proceeds of the sale thereof.
CONSEQUENCE: The person may appeal to the Court-
- Court to whom appeals ordinarily lie from the sentences of the first mentioned Court.
THIS (THIRD) PART CONSISTS OF PROCLAMATION AND ATTACHMENT (section 82-86), AS PART-C IN THE CODE, SECOND PART OF THE SERIES ON CHAPTER 6 OF CODE OF CRIMINAL PROCEDURE, 1973 CONSISTS OF WARRANT OF ARREST, AS PART-B, IN THE CODE and FIRST PART CONSISTS OF SUMMONS, AS PART-A, IN THE CODE, and THIRD PART CONSISTS OF PART-C, OF THE CODE WHICH IS PROCLAMATION AND ATTACHMENT.
Farheen Dhanjal 