Section 82 of the Code provides that if a Court has reason to believe that any person to whom a warrant has been issued by it has absconded, or is concealing himself so that the warrant cannot be executed, the Court may publish a written proclamation requiring him to appear at a specified place and at a specified time, which should not be less than 30 days from the date of publishing the proclamation.
Such a proclamation is to be published as follows:
(a) It must be publicly read in some conspicuous place of the town or village in which such person ordinarily resides.
ADVERTISEMENTS:
(b) It must be affixed to some conspicuous part of the house where such person ordinarily resides.
(c) A copy of the proclamation must also be affixed to some conspicuous part of the Court.
(d) If the Court so directs, a copy of the proclamation is also to be published in a daily newspaper circulating in place in which such person ordinarily resides.
It may be noted that the three sub-clauses (a), (b) and (c) above are conjunctive, and not disjunctive. In other words, unless all the three modes of publication are proved, there can be no valid publication of the proclamation.
ADVERTISEMENTS:
It is now also provided (by the 2005 Amendment) that if a proclamation is issued in respect of certain specified offences and the person fails to appear at the specific place and time, the court may, after inquiry, pronounce him as a proclaimed offender and make a declaration to that effect.
Under S. 82, the previous issue of a warrant against the person concerned is a necessary condition. Therefore, if the Court has no jurisdiction or authority to issue a warrant, an order for the issue of a proclamation would be illegal. (Kanwar Singh,—15 P.R. 1893)
The Madras High Court has held that if, after the issue of the warrant, the Magistrate is informed that the accused had already left India when the warrant was issued, a proclamation under this section cannot be issued, as the accused cannot be said to be wilfully absconding when he could not have known of the warrant. (Vellayappa, —A.I.R. 1942 Mad. 289)
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ADVERTISEMENTS:
Under this section, it is necessary that the person must have absconded or he must be concealing himself so that the warrant cannot be executed. It, therefore, follows that the mere fact that the Sub-Inspector could not find the accused is not enough. (Shewdyal, — 6 W.R. 73)
The accused must be given at least 30 days for appearance. If the date fixed for this appearance is less than 30 days (from the date when the proclamation published), it is illegal, and all subsequent proceedings (like attachment and sale) will also be invalid and may be quashed. (Moltan Singh.—21 Cr. L.J. 210)
So also, a proclamation which does not mention the time within which the absconder should present himself is equally void. (Mian Jan v. Abdul,—1905 27 All. 572)
Non-compliance with the requirements of S. 82 would be a non- compliance with “the procedure established by law” within the meaning of Art. 21 of the Constitution. (Indradeo v. State of West Bengal—1973 4 S.C.C. 4)
The following is a specimen form of a proclamation requiring the appearance of an accused person:
WHEREAS a complaint has been made before me that (name, description, and address) has committed (or is suspected to have committed) the offence of (state offence), punishable under section—of the Indian Penal Code, and it has been returned to a warrant of arrest thereupon issued that the said (name) cannot be found, and whereas it has been shown to my satisfaction that the said (name) has absconded (or is concealing himself to avoid the service of the said warrant);
Proclamation is hereby made that the said (name) of (address) is required to appear at (place) before this Court or before me to answer the said complaint on the 5th day of April, 20
Dated this 1st day of March, 20
(Seal)
(Signature)
S. 83 provides that, at any time after the issue of the proclamation, the Court may also issue an order for attachment of any property, movable or immovable, of the proclaimed offender. Such an order of attachment can also be issued simultaneously with the proclamation in the following two cases:
(i) If such person is about to dispose of the whole or any part of his property; or
(ii) If such person is about to remove the whole or any part of his property from the local jurisdiction of the Court.
If the property ordered to be attached is a debt or other movable property, the attachment is to be made—
(a) By seizure; or
(b) By appointment of a receiver; 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 any combination of the above methods, as the Court thinks it.
If the property which is ordered to be attached is immovable property, the attachment is to be made through the Collector of the District in the case of land on which revenue is payable to the State Government.
In all other cases, attachment of immovable property is to be made—
(a) By taking possession; or
(b) By appointment of a receiver; or
(c) By an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to any one on his behalf; or
(d) By a combination of any of the above methods, as the Court thinks fit.
If the property which is ordered to be attached consists of live-stock or is of a perishable nature, the Court may order an immediate sale thereof, and also issue directions as regards the proceeds of such a sale.
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.
When land is attached under this section, and actual possession thereof is taken by posting a constable on the spot, a person removing standing crops from such land would be guilty of an offence under S. 379 of Indian Penal Code. (Bonde AH,—1939 2 Cal. 419)
If any claim or other objection is made to the attachment of any property attached under the above provisions, within six months from the date of the attachment, by any person other than the proclaimed person, on the ground that such claimant or objector has an interest in such property and that such interest is not liable to be attached, such claim or objection is to be inquired into by the Court, and may be allowed or disallowed in whole or in part.
If such claim is disallowed, the aggrieved person may, with one year from the date of the order, institute a regular suit to establish his right to such property. (S. 84) This provision is similar to Rule 58 of the Order 21 of the Civil Procedure Code, 1908. An inquiry into a claim filed under this section would be a judicial inquiry within the meaning of S. 2(i) of the Code.
If the proclaimed person makes his appearance within the time specified in the proclamation, the Court must pass an order releasing the property from the attachment. However, if such a person does not appear within the specified time, the attached property is at the disposal of the State Government. However, such property cannot be sold until six months have expired from the date of the attachment, and until all claims or objections made with reference to such property has been disposed of.
It may be noted that a mere seizure of the property of an absconder by the police does not confer any rights on the Government, until proceedings are taken under S. 82 and S. 83 of the Code. Thus, in one case, where the police seized certain property of an absconder in August, but no proceedings were taken until December, it W3S held that an attachment of the property in October by a creditor in a civil suit would prevail, and the Magistrate cannot refuse to hand over the property in obedience to the order of the Civil Court. (Subramanyam, — 13 Cr. L.J. 568)
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 (seen 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.
