Proclamation and Attachment of Property

Three conditions before a proclamation can issue: a warrant must already have been issued by that Court; the Court must have reason to believe he has absconded or is concealing himself; and the belief must be that the warrant therefore cannot be executed. The thirty days is a minimum, not a maximum.

Sub-section (2), how it is published. Clause (i) is mandatory and has three limbs, all of which must be done:

(a) it shall be publicly read in some conspicuous place of the town or village where he ordinarily resides; (b) it shall be affixed to some conspicuous part of the house or homestead in which he ordinarily resides, or to some conspicuous place of that town or village; (c) a copy shall be affixed to some conspicuous part of the Court-house.

Clause (ii) is discretionary: the Court may also, if it thinks fit, direct a copy to be published in a daily newspaper circulating in the place where he ordinarily resides.

Sub-section (3), proof. A statement in writing by the Court that the proclamation was duly published on a specified day in the manner specified in clause (i) is conclusive evidence that the requirements have been complied with and that it was published on that day.

Sub-section (4), the declaration, and this is new law. Where a proclamation is in respect of a person accused of an offence punishable with imprisonment of ten years or more, or imprisonment for life, or with death, under the Bharatiya Nyaya Sanhita or any other law, and he fails to appear at the specified place and time, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

Sub-section (5) applies the publication and proof rules in sub-sections (2) and (3) to that declaration as they apply to the proclamation.

Why does sub-section (4) matter so much? Because two other provisions of the Sanhita hang off the status it creates. Section 35(1)(d) allows arrest without warrant of a person proclaimed as an offender. And section 356 allows an inquiry, trial and judgment in his absence. Neither works without a declaration, and before 2023 there was no statutory way to make one.

Section 85: attachment of property

Sub-section (1). The Court issuing a proclamation 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.

The proviso allows the attachment to be ordered simultaneously with the proclamation where the Court is satisfied, by affidavit or otherwise, that the person (a) is about to dispose of the whole or part of his property, or (b) is about to remove it from the Court's local jurisdiction.

Sub-section (2), reach. The order authorises attachment of property within the district in which it is made, and property outside that district when endorsed by the District Magistrate within whose district the property is situated.

Sub-section (3), how movables are attached. By seizure; or by the appointment of a receiver; or by an order in writing prohibiting delivery of the property to the proclaimed person or anyone on his behalf; or by an order prohibiting payment of rent or delivery to him or on his behalf; or by all or any two of those methods as the Court thinks fit.

Sub-section (5), perishables. Where the property is live-stock or of a perishable nature, the Court may, if expedient, order immediate sale, and the proceeds abide the Court's order.

Sub-section (6). A receiver appointed under this section has the same powers, duties and liabilities as a receiver appointed under the Code of Civil Procedure, 1908.

Section 86: property outside India

The Court may, on the written request of a police officer not below the rank of Superintendent of Police or Commissioner of Police, initiate the process of requesting assistance from a Court or an authority in the contracting State for identification, attachment and forfeiture of property belonging to a proclaimed person, in accordance with the procedure provided in Chapter VIII.

This section has no counterpart in the old Code. It plugs the absconder chapter into the mutual legal assistance machinery in [Reciprocal Arrangements for Assistance], and it is the answer to an obvious weakness: a man who leaves the country and takes his money with him.

Note the two conditions. The request must be written, and it must come from an officer not below Superintendent of Police or Commissioner of Police.

Sections 87 to 89: claims, release, sale and restoration

Section 87, claims and objections. Where a claim or objection to the attachment is made within six months of the attachment by any person other than the proclaimed person, on the ground that the claimant has an interest in the property not liable to attachment, it shall be inquired into and may be allowed or disallowed wholly or in part. The proviso lets a legal representative continue the claim if the claimant dies.

The claim is preferred in the Court that ordered the attachment, or, where the property was attached under an endorsement under section 85(2), in the Court of the Chief Judicial Magistrate of the district where the attachment was made, sub-section (2). It is inquired into by the Court in which it is made, though a Chief Judicial Magistrate may make it over to a subordinate Magistrate, sub-section (3).

Sub-section (4) gives a disallowed claimant one year from the order to institute a suit to establish his right; subject to the result of that suit the order is conclusive.

Section 88, what happens to the property.

Sub-section (1). If the proclaimed person appears within the time specified, the Court shall release the property from attachment.

Sub-section (2). If he does not, the property is at the disposal of the State Government. But it shall not be sold until six months from the attachment and until any claim under section 87 has been disposed of, unless it is subject to speedy and natural decay or the Court considers a sale would be for the benefit of the owner, in which case it may be sold whenever the Court thinks fit.

Sub-section (3), restoration. If within two years of the attachment a person whose property is or has been at the State Government's disposal appears voluntarily or is apprehended and brought before the Court, and proves 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, then the property, or the net proceeds of sale, or both where part was sold, shall be delivered to him after satisfying the costs incurred in consequence of the attachment.

Two things must both be proved and students routinely give only one: no intention to avoid the warrant, and no adequate notice.

Section 89, appeal. A person under section 88(3) who is aggrieved by a refusal to deliver the property or the proceeds may appeal to the Court to which appeals ordinarily lie from the sentences of the first Court.

A worked example

A Sessions Court at Kalyan issues a warrant against Nilesh, accused of an offence punishable with twelve years. The warrant comes back unexecuted; the police report that he has left his house and cannot be traced.

Proclamation. The Court, having reason to believe he is absconding so that the warrant cannot be executed, publishes a written proclamation requiring him to appear on a date not less than thirty days away, section 84(1). It is publicly read in his locality, affixed to his house and to the court house, section 84(2)(i), and the Court also directs publication in a local daily, section 84(2)(ii).

Attachment. The police file an affidavit that Nilesh is selling his flat. The Court may therefore order attachment simultaneously with the proclamation, under the proviso to section 85(1), recording its reasons in writing. The flat is in Thane district, so the order needs the endorsement of the District Magistrate of Thane, section 85(2).

His brother objects, saying half the flat is his. He may prefer a claim within six months of the attachment, in the Court of the Chief Judicial Magistrate of Thane because the attachment was under an endorsed order, section 87(2). If it is disallowed he has one year to file a suit, section 87(4).

Nilesh does not appear. Because the offence carries twelve years, the Court may, after such inquiry as it thinks fit, pronounce him a proclaimed offender under section 84(4), and publish that declaration in the same way. From then on any police officer may arrest him without warrant under section 35(1)(d), and the Court may proceed under section 356.

His money is in a bank abroad. A Commissioner of Police may make a written request, and the Court may then initiate a request for assistance from the foreign court or authority under section 86, following Chapter VIII.

Fourteen months later Nilesh is arrested and produced. He proves that he had gone to look after his mother in another State, did not know of the proclamation, and was not avoiding the warrant. Because it is within two years and he proves both limbs, section 88(3) requires the property, or the net sale proceeds, to be delivered to him after deducting the costs of the attachment.

The Court refuses. He may appeal under section 89 to the Court to which appeals ordinarily lie from that Court's sentences.

Distinctions

What this does NOT mean

A proclamation is not a substitute for a warrant. Section 84(1) requires a warrant to have been issued already.

Not every proclaimed person is a proclaimed offender. The declaration under section 84(4) is confined to offences punishable with ten years or more, life or death.

Attachment is not forfeiture. Section 88(1) releases the property if he appears, and section 88(3) restores it in the circumstances it states.

Thirty days is a floor, not a fixed period. Section 84(1) says "not less than thirty days".

And section 84(3) makes the Court's written statement conclusive only as to publication, not as to whether the person absconded.

Quick revision

• Section 84(1): proclamation after a warrant has issued, on reason to believe he has absconded or is concealing himself; appearance not less than thirty days later.
• Section 84(2): publicly read in his town or village; affixed to his house or a conspicuous place; affixed at the Court-house; may also be published in a daily newspaper.
• Section 84(3): the Court's written statement is conclusive evidence of due publication.
• Section 84(4), new: for offences punishable with ten years or more, life or death, non-appearance permits a declaration that he is a proclaimed offender.
• Section 85: attachment for reasons recorded, after the proclamation, or simultaneously if he is about to dispose of or remove property; within the district, or outside on the District Magistrate's endorsement; movables by seizure, receiver, or prohibitory orders; live-stock and perishables may be sold at once; the receiver has Code of Civil Procedure powers.
• Section 86, new: identification, attachment and forfeiture of property abroad, on the written request of an officer not below Superintendent of Police or Commissioner of Police, through Chapter VIII.
• Section 87: claims within six months by a person other than the proclaimed person; suit within one year of disallowance.
• Section 88: release on appearance within time; otherwise at the State Government's disposal, no sale for six months except for decay or the owner's benefit; restoration within two years on proof of no abscondence and no notice, less costs.
• Section 89: appeal against refusal to restore, to the Court to which appeals ordinarily lie from that Court's sentences.

Test yourself

1. What must exist before a Court can publish a proclamation? A warrant issued by that Court, and reason to believe that the person has absconded or is concealing himself so that the warrant cannot be executed, section 84(1).

2. What is the minimum time a proclamation must allow? Not less than thirty days from the date of publishing it, section 84(1).

3. When may a Court declare a person a proclaimed offender? Where the proclamation is in respect of an offence punishable with imprisonment of ten years or more, life imprisonment or death, and he fails to appear as required; the Court may then, after such inquiry as it thinks fit, pronounce him a proclaimed offender, section 84(4).

4. May property be attached before the proclamation is published? No. It may be attached at any time after the proclamation is issued, or simultaneously with it under the proviso to section 85(1) where the Court is satisfied he is about to dispose of or remove his property.

5. Within what time may a stranger object to the attachment, and what must he show? Within six months of the attachment, that he has an interest in the property which is not liable to attachment under section 85, section 87(1).

6. What must an absconder prove to get his attached property back? Both 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, and he must appear or be brought before the Court within two years of the attachment, section 88(3).

7. How can a Court reach a proclaimed person's property outside India? Under section 86, on the written request of a police officer not below the rank of Superintendent of Police or Commissioner of Police, by initiating a request for assistance from a Court or authority in the contracting State, following Chapter VIII.