Proclamation and Attachment of Property of Person Absconding : Section 82 and 83 of CrPC

Normally any accused person whose presence is required by Court is to be at first instance called upon by summons. Sub section (1) of Section 204 of the Code of Criminal Procedure (in short CrPC) reads as follows- If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be

(a) a summons case, he shall issue his summons for the attendance of the accused, or 

(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or ( if he has no jurisdiction himself) some other Magistrate having jurisdiction.

Further sub section (5) of Section 204 CrPC says- Nothing in this section shall be deemed to affect the provisions of section 87. 

     

Section 87 of the Code of Criminal Procedure empowers a Court to issue warrant in lieu of, or in addition to, summons. It can be exercised in two cases

(a) where the Court believes that the person summoned, either before or after the issue of summons, has absconded or will disobey the summons, or 

(b) where he has without reasonable cause failed to appear. The recording of reasons by the Court is a condition precedent to the exercise of the power.

The other processes to compel the appearance of persons before the criminal courts are

(i) Proclamation as absconder, where a warrant fails to take effect; 

(ii) Attachment and sale of property, if the absconder is not forthcoming;

(iii) Taking of bond with or without sureties.

Proclamation for person absconding.- 

Section 82, CrPC provides as to when and how proclamation can be issued for an absconding person. If any court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be executed, such Court may publish a written proclamation requiring, him to appear at specified place and at specified time not less than thirty days from date of publishing such proclamation. 

  

Sub section (2) of Section 82, CrPC says – 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.

Every person who is not immediately available cannot be characterized as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provision of Section 82 requires that the Court must in the instance, issue a warrant and it must put down its reason for believing that the accused is absconding or concealing himself.

Attachment of property of person absconding -

The property of the person against whom a proclamation is issued under Section 82, CrPC can be attached in order to compel his appearance in court. This has been provided by Section 83. 

According to Section 83, CrPC the Court issuing 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.

The object of Section 83 CrPC is to penalize a person who seeks to avoid his arrest under warrant and against whom a proclamation is issued under Section 82, for disobedience of the proclamation, he incurs liability to be punished under Section 174 and 174 A of the Indian Penal Code.

The procedure laid down under Section 83 CrPC has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under Section 82 has been issued. The normal rule is to wait until expiry of thirty days to enable the accused to appear in terms of the proclamation which is to be computed from the date of publication of proclamation and the provisions in this respect are mandatory.

Section 88, CrPC empowers the Court to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trail.


Remedy available to an aggrieved person-

The following four remedies are available to an aggrieved person
(i) Remedy by way of a claim or objection under Section 84, CrPC
(ii) Remedy by way of civil suit to establish a claim (Section 84, CrPC)
(iii) An appeal under Section 86, CrPC
(iv) Under certain circumstance, a revision application under Section 397, CrPC.

Quiz Corner

(i) A proclamation requiring a person to appear must be published giving
(a) not less than 30 days time to the person concerned
(b) not less than 10 days time to the person concerned
(c) not less than 20 days time to the person concerned
(d) not less than 15 days time to the person concerned.

(ii) Attachment of the property of the person absconding
(a) can only be issued after publication of the proclamation under section 82 of crpc
(b) can be issued before publication of the proclamation under section 82 of crpc
(c) can be issued simultaneously with the issue of proclamation under section 82 of crpc
(d) all of the above.

(iii) If the person proclaimed appears within the period specified in the proclamation, the property attached
(a) shall not be released from attachment
(b) shall be released from attachment
(c) shall be forfeited
(d) both (a) & (c).

(iv) If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment

(a) shall not be sold untill expiry of six months from the date of attachment

(b) shall not be sold untill any claim or objection under section 84 of crpc have been disposed of

(c) both (a) & (b)

(d) none of the above.

(v) Period of limitation for filing claims and objections to the attachment of any property attached under section 83 of crpc, by any person other than the proclaimed person, as provided under section 84 of crpc
(a) within three months of attachment
(b) within six months of attachment
(c) within one year of attachment
(d) within two months of attachment.

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