Law and You >Procedural Laws > BNSS > Proclamation and Attachment (Ss. 84 to 89 BNSS)
There are consecrated principles of criminal law within the four corners of which the criminal adjudication follows. One of the condition precedent to a trial is securing the attendance of the accused, witnesses or other necessary persons before the Court and also the production of the documents necessary for the trial. Appearance is required not only of the accused but also of the witnesses. Chapter VI of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the processes to compel appearance of the accused or witness in the court. The Court can compel the person to be present in the Court using summons, warrant of arrest, or proclamation and attachment. In this article let us discuss provisions related to Proclamation and Attachment in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Where the summons for the attendance of the accused person is to be issued, but the court believes the accused may abscond or when the accused fails to appear before the court without any reasonable cause, a warrant of arrest is issued. Thus, wherever summons are issued the warrant can be issued only after due service of summon and subsequent non-appearance without any reasonable excuse. A Magistrate ought not, after the issue of a summons, order the issue a warrant unless he placed on record his reasons for considering that the accused has been duly served and that in spite of such service he had failed to appear without a reasonable cause.
Now, the warrant of arrest has been issued, and there is reason to believe that the accused has absconded or is hiding himself to avoid the execution of the warrant. The court may publish a written proclamation requiring the accused to appear before the court and may attach his property. If the accused fails to appear after the proclamation as well, the court may also attach the property of the accused, and the property will be at the State Government’s disposal. These provisions have been dealt with under sections 84 to 89 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
In Mahender Chawla v. Union of India, 2018 SCC OnLine SC 2679 case, the Supreme Court observed that, there is major difference between substantive provisions defining crimes and providing punishment for the same and procedural enactment laying down the procedure of trial of such offences. Rules of procedure are handmaiden of justice and are meant to advance and not to obstruct the cause of justice. It is, therefore, permissible for the court to expand or enlarge the meanings of such provisions in order to elicit the truth and do justice to the parties.
Constitutionality of Process of Proclamation and Attachment:
The process to compel the appearance of persons before the Court in a trial under Chapter VI of the Sanhita affects the personal liberty of the person against whom the process under the Chapter has been issued. Therefore, under such circumstances, it is mandatory for the Courts to follow the principle of procedural due process and strictly adhere to the procedures laid down in the provisions contained in the Chapter the non-compliance of which is bad in the eyes of law and the irregularity therein is not curable under the Sanhita.
Proclamation for Person Absconding:
Proclamation:
- According to Section 84(1) of BNSS, 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.
According Section 2(29) of the Bharatiya Nyaya Sanhita, 2020 a person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise. The words “reason to believe” contemplate “subjective satisfaction” of the Court on the basis of the materials before the Magistrate acting under Section 82 CrPC (S. 84 BNSS).
An accused will be declared absconder when the court is satisfied that the accused had left his permanent residence or he is avoiding service or there is no chance of his arrest in near future. The court, in such cases, may rely on other materials available on record or may take evidences which may lead the Court to reasonably believe that the person is absconding or concealing himself. But, under no circumstances, an order under Section 82 CrPC (S. 84 BNSS) must be passed mechanically. The order must reflect that the Court has applied its judicial mind and only after its subjective satisfaction, the Court has reason to believe that the person has absconded and a proclamation under Section 82 CrPC (S. 84 BNSS) is essential.
In Md. Nazrul Islam v. State of Assam, 2008 CrLJ 3374 (Gau) case, the Gauhati High Court said that the Section empowers the Court to issue proclamation against a person when a warrant against him is returned unexecuted for evasion, concealment or abscondance. The proclamation cannot be issued without first issuing a warrant. The Court must await the return of the warrant. If there is no authority to issue warrant, the order of proclamation is necessarily illegal. As the Section entails penal consequence and affects the personal liberty, it must be strictly construed. Proclamation and attachment affects certain valuable rights of a person although he might be facing a criminal case as an accused and the same is not to be interfered with in a casual and mechanical manner, but is to be affected by strict adherence to the provision of law.
In N.M.V. Vellayappa Chettiar v. Alagappa Chettiar, AIR 1942 Mad 289 case, the Madras High Court held that if a person had gone to a distant place before the issue of a warrant, he cannot be said to be absconding to evade the warrant execution.
In K.T.M.S. Abdul Qader V Union of India AIR 1977 Mad. 386 case, the Madras High Court held that 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.
In Mahendra Kumar Ruiya v. The State of Jharkhand, 2013 (3) JLJR 407 (Jhar) case, the Jharkhand High Court observed:“………. Sub-section (1) empowers the Court to issue written proclamation with certain direction to appear at a specified place and a specified time against a person who has either absconded or concealing himself so that the warrant issued against him could not be executed. Sub-section (2) of Section 82 (S. 84 BNSS) of the Code indicates the manner in which a proclamation shall be published or executed. In this connection compliance of Sub- Section (3) of Section 82 (S. 84 BNSS) of the Code is very much important. This sub-section speaks about the subjective satisfaction of the Court and such subjective satisfaction of the Court must be reduced into writing to the effect that the proclamation was duly published on a specific date in the manner specified in clause (i) of sub-section (2) and that shall be the conclusive evidence that requirement of this section had been complied with and the proclamation was duly published. Such statement recorded in writing shall be the consequence for the next step for issuance of process under Section 83 of the CrPC (S. 85 BNSS), therefore, before proceeding with provision contained under Section 83 of the CrPC (S. 85 BNSS) the Court issuing a proclamation under Section 82 (S. 84 BNSS) must record a reason in writing that even after issuance of proclamation the accused did not comply the direction and remained absconding or concealing himself or evading his appearance. The primary meaning of the word abscond is to hide and when a person is hiding from the place of his residence he is said to be absconder. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. In that view of the matter, I feel that strict compliance of sub-section (3) of Section 82 CrPC (S. 84 BNSS) is very much required for declaring any accused as absconder. I would further like to explain that Section 82CrPC (S. 84 BNSS) has mainly three parts. As per first part of the Section it is well settled that issuance of warrant is condition precedent for issuance of process of proclamation under Section 82 of the Code (S. 84 BNSS). The Court must be satisfied that it has reason to believe that the accused has been absconding or concealing himself so that such warrant cannot be executed. Second part suggest as to how proclamation has to be given effect or published to make the accused acquaint that his appearance is required in connection with particular case before a particular Court. The third part as indicated under sub- section (4) of Section 82 of the CrPC (S. 84 BNSS) gives more discretion to make inquiry against an accused who has committed offence indicated under sub-section (4). After recording reasons the Court can declare an accused of such offence as proclaimed offender.”
Publication of Proclamation:
According to Section 84(2)(i) of BNSS, the proclamation shall be published as follows:—
(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;
Publication of Proclamation in News Paper:
According to Section 84(2)(ii) of BNSS, the proclamation 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.
Essentials of Proclamation:
- The proclamation shall be read publicly in the part of the town or village where such person resides;
- The written proclamation shall be affixed to some conspicuous (clearly visible) part of the house in which such person resides;
- A copy of such publication will also be affixed at the courthouse;
- If the court thinks fit, it may order to publish such publication in a daily newspaper circulating in the area where such person resides.
Evidentiary Value of Published Proclamation:
According to Section 84(3) of BNSS, 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.
Declaration of Proclaimed Offender:
According to Section 84(4) of BNSS,where a proclamation published under sub-section (1) is in respect of a person accused of an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force, 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.
According to Section 84(5) of BNSS, 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).
Where a proclamation published under Sub-Section (1) is in respect of a person accused of an offence punishable under section 103, 105, 140, 307, 309(2), 309(3), 309(4), 310(2), 310(3), 311, 312, 310(4), 313, 310(5), 326, 332, 331 of the Bharatiya Nyaya Sanhita, 2023 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.
A proclamation is a notice to the accused, who is believed by the court to have absconded or concealed himself to evade execution of warrants. Such person is proclaimed person if he has not committed an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force. Whereas, proclaimed offender is a title that is conferred upon a person against whom a proclamation has been published and also who have committed an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force.
Once a proclamation under Section 84 of BNSS has been issued, the person against whom the order has been passed is not entitled for anticipatory bail. Apart from this, the proclamation also affects the rights of the person against whom the order has been passed under Section 84 of BNSS.
In Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730 case, the Supreme Court held that if the proclamation under Section 82 CrPC (S. 84 BNSS) has been issued against a person, such person cannot move the Court under Section 438 of the CrPC (S. 482 BNSS) for the grant of anticipatory bail.
Punishment for Nonappearance in Response to a Proclamation:
According to Section 209 of the Bharatiya Nyaya Sanhita, 2023 whoever fails to appear at the specified place and the specified time as required by a proclamation published under sub-section (1) of section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both, or with community service, 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.
Attachment of Property of Person Absconding:
Order of Attachment:
According Section 85(1) of BNSS the Court issuing a proclamation under section 84 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 of property simultaneously with the issue of the proclamation.
The procedure laid down under Section 85 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 84 has been issued. The normal rule is that the court has to wait until the expiry of 30 days, to enable the accused to appear in terms of proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation.
The order of attachment under Section 85 BNSS can only be passed if there has been a valid proclamation under Section 84 BNSS and the same has not been complied with within the period given in the order of proclamation. Only when the Court is satisfied that the aforementioned conditions are satisfied, the Court must record the reasons in its order in relation to the subjective satisfaction of the Court due to which the court had the reason to believe that the conditions are satisfied and the situation demands for the issuance of an order of attachment under Section S. 85 BNSS.
The conjoint reading of Section 84 and Section 85 of BNSS entails that the order for attachment must ordinarily be made after the expiry of 30 days from the date of issuance of the proclamation under Section 84 BNSS. However, the proviso to section 85(1) of BNSS lays down that if the court has reason to believe that the person against whom a proclamation under Section 84 of BNSS has been issued is about to dispose of 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. In such a case, the court, in addition to the recording of the aforesaid reasons, must also record the special reasons which necessitated the simultaneous issuance of orders of proclamation and attachment
In Dipnarayan Singh v. State of Bihar, 1981 CrLJ 1672 (Pat) case, the Patna High Court observed that the object of the Section is to compel the appearance of the person against whom proclamation has been issued by the penalty of attachment and sale of his property. Only the court issuing a valid proclamation, and no other court, may for reasons to be recorded in writing, at any time after the issuance of proclamation, attach his property. Before issuing the order of attachment, a proclamation under Section 82 CrPC (S. 84 BNSS) must be issued directing the person concerned to appear.
In Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel (2208) 4 SCC 649 case, the Supreme Court observed that since the purpose of Section 83 CrPC (S. 85 BNSS) is not to punish the absconder but to compel his appearance, once the absconding accused surrenders before the Court and the Standing warrants cancelled, he is no longer an absconder. The purpose of attaching his property comes to an end. It is to be released subject to the provisions of the Code (Sanhita).
In Anita Aggarwal v. The Govt. of Nct of Delhi the Court held that Section 83 enjoins upon the Court to record the reasons in writing for ordering the attachment of any property belonging to the person who has been proclaimed as an offender under Section82, CrPC (S. 84 BNSS). Even the order of attachment of property has two pre- requisites – firstly, the Court has to satisfy itself either by affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of whole or any part of the property or secondly, that he is about to remove whole or part of the property from the local jurisdiction of the Court.
In Shiv Kumar Thakur v. The State of Jharkhand, Cr.M.P. No. 1060/2019 case, the Jharkhand High Court opined that the order for attachment must be done through a speaking order whereby the Court must record its subjective satisfaction which created in its judicial mind, the reason to believe that the circumstances existed which necessitated the order under Section 83 CrPC (S. 85 BNSS).
Attachment of Property in Different Jurisdiction:
According Section 85(2) of BNSS, such order shall authorise 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 property is situate.
The Court’s order to attach the property would be authorized within the local jurisdiction. If the attached property is located in another area, then it would be authorized after being endorsed by the District Magistrate of the concerned area.
Attachment of Property in Debt or Other Movable Property:
According Section 85(3) of BNSS, 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
(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.
On some occasions, the property to be attached might be a debt or a movable property. Section 83(3) has laid down the manner in which such properties could be attached:
- By seizing such property; or
- By appointing a receiver;
- By issuing an order which will obstruct such property from being delivered to the proclaimed offender or someone who might receive it on his behalf; or
- In any way that the Court deems fit.
Attachment of Movable Property:
According Section 85(4) of BNSS, 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 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.
If the property which has to be attached is immovable, it will be attached in the following manner:
- The attachment will be made via Collector of the district where the property is situated when the matter concerns land paying revenue to the State government.
In other cases, the property will be attached:
- By taking possession of the property or by appointing a receiver; or
- By issuing an order restricting the payment of rent to the person absconding or to anyone on his behalf; or
- In any way, the Court deems fit.
Attachment of Perishable Property:
According Section 85(5) of BNSS, if the property ordered to be attached consists of live-stock 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.
If the property to be attached is or is inclusive of livestock or perishable goods, then the Court may grant an order directing the immediate sale of the property. Livestock implies farm animals which are valued as assets. The proceeds earned from such sale would be put to use in the way directed by the Court.
Powers, Duties and Liabilities of a Receiver:
According Section 85(6) of BNSS, 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.
Receiver:
The receiver is defined under Order 40 of Code of Civil Procedure, 1908 (CPC) as an independent and impartial person, appointed by the Court to administer or manage a property that is involved in a dispute. The said person does not represent any of the parties in a case. He is the officer of the Court who works in the common interest of the parties. For instance, he shall manage a disputed property until the case is not settled. Sections 83(3)(b) and 84(4)(b) of the Code provide for the appointment of a receiver for the purpose of attaching a property. The plaintiff or the defendant could request the appointment of the receiver. The appointment of a receiver, however, is a discretionary power of the Court.
Appointment of Receiver:
Rule 1(1) of Order XL is concerned with the appointment of a receiver. When the Court finds it just and convenient, it may order:
- The appointment of a receiver of any property, either before or after decree;
- The removal of property from the possession of any person and commit the possession, custody or management of the same property to the receiver.
Powers of Receiver:
Rule 1(1)(d) empowers the receiver to bring and defend suits. The receiver is empowered with the realization, management, protection, preservation, and improvement of the property. He can collect rent and profits generated from the property, apply and dispose of them, and execute the documents like the owner himself does, so far as the Court deems fit.
Duties of Receiver:
The duties of a receiver are laid down under Rule 3 of Order XL. It states that every receiver is required to:
- Furnish something the Court deems fit as security to account for the proceeds or benefits that he shall receive out of the property;
- Submit his accounts whenever the Court directs, in the same manner as directed by the Court;
- Make a payment of the outstanding amount as directed by the Court; and
- Be held responsible for any loss incurred to the property by the wilful default or gross negligence on the part of the receiver.
Liabilities of Receiver:
The liabilities of the receiver are enumerated under Rule 4 of Order XL. The liability/liabilities or the receiver shall arise on:
- Failure to submit the accounts as and when directed by the Court;
- Failure to pay the outstanding amount as directed by the Court; or
- Incurring a loss to the property due to his wilful default or gross negligence. In the event of such occurrence, the Court may direct to attach the receiver’s property and may sell the same to reimburse for the amount due or loss incurred due to the conduct of the receiver. If any amount is left after the sale of the receiver’s property and after clearing out the overdue amount or loss, the amount left after meeting all aforementioned requisites shall be returned to the receiver.
Identification and Attachment of Property of Proclaimed Person:
According Section 86 of BNSS, the Court may, on the written request from a police officer not below the rank of the 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.
Claims and Objections to Attachment:
According Section 87(1) of BNSS, if any claim is preferred to, or objection made to the attachment of, any property attached under section 85, 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 85, 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.
According Section 87(2) of BNSS, 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 85, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made.
According Section 87(3) of BNSS, 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.
According Section 85(4) of BNSS, 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.
Release, Sale and Restoration of Attached Property:
According Section 88(1) of BNSS, if the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
According Section 88(2) of BNSS, 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 87 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.
According Section 88(3) of BNSS, if 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.
Appeal from Order Rejecting Application for Restoration of Attached Property:
According Section 89 of BNSS, any person referred to in sub-section (3) of section 88, 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.