1. Ins. by Act 25 of 2005, s. 12 (w.e.f. 23-6-2006).

Study Notes

Section 82 of the Code of Criminal Procedure deals with the issuance of a proclamation by the Court if a warrant issued by it remains unexecuted. The section contains the following provisions:

1. Proclamation for person absconding: If any Court has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself so that such warrant cannot be executed, the Court may publish a written proclamation requiring him to appear at a specified place and time not less than thirty days from the date of publishing such proclamation.
2. Publication of proclamation: The proclamation shall be published by publicly reading it in some conspicuous place of the town or village in which such person ordinarily resides, affixing it 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, and affixing a copy thereof 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 the place in which such person ordinarily resides.
3. Conclusive evidence: 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.
4. Punishment for non-appearance: If a proclamation is published in respect of a person accused of certain offences 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.
5. Provisions for declaration: 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).

The immediate effect of publication of the proclamation under s. 82 is that the Court is empowered to make an order of attachment, under s. 83, whereupon the subsequent sections 84-85 will come into play. If the person fails to appear in obedience to a proclamation under this section, he would be punishable under s. 174A, I.P.C.

In connection with s. 82, it should be noted that s. 299 enables the Court to record the evidence of prosecution witnesses in the absence of the accused, as an exception to the general rule that witnesses against the accused must be examined in his presence.

This section should be read along with:-

Cr.P.C:

• s.40(2)(ii)
• s.41(1)(ii)(c)
• s.43
• s.73
• s.83
• s.84
• s.85
• s..299
• s.461(a)

I.P.C

• s.174
• s.174A

Study Notes

Section 83 of the Code of Criminal Procedure deals with the attachment of property of a person absconding, against whom a proclamation has been issued under Section 82. Here are the detailed notes:

-Attachment of property:

• The Court issuing a 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.
• The objective of attaching the property is to compel the appearance of the absconder and not to punish him.

-Proviso to Section 83(1):

• The proviso to Section 83(1) provides that if, at the time of issuing the proclamation, the Court is satisfied that the person in relation to whom the proclamation is to be issued is about to dispose of his property or remove it from the local jurisdiction of the Court, the Court may order the attachment of such property simultaneously with the issue of the proclamation.

-Authorisation for attachment:

• Such an order of attachment shall authorise the attachment of any property belonging to such person within the district in which it is made.
• It shall also 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 situated.

-Methods of attachment:

• If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made by seizure or by the appointment of a receiver, or by an order in writing prohibiting the delivery of such property to the proclaimed person or to any one on his behalf, or by all or any two of such methods, as the Court thinks fit.
• If the property ordered to be attached is immovable, the attachment under this section shall be made through the Collector of the district in which the land is situated, and in all other cases, by taking possession, or by the appointment of a receiver, or 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 by all or any two of such methods, as the Court thinks fit.

-Live-stock or perishable nature of property:

• 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.

-Powers, duties and liabilities of a receiver:

• 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.(Order 40)

-Resistance to attachment punishable:

• Any resistance to the attachment of property under section 83 is considered as obstruction of a public servant in the discharge of his duties and is punishable under section 186 of the Indian Penal Code. However, if the attachment is found to be illegal due to a violation of the conditions for its legality, revision can be filed to quash the attachment.

Devendra Singh Negi Alias Debu vs State Of U.P. And Anr. 1994 CriLJ 1783

In Devendra Singh Negi v. State of U.P., the court emphasised that the purpose of attaching the property of an absconder under Section 83 of the Code of Criminal Procedure is not to punish the accused, but rather to ensure their appearance in court. The court held that the procedure under Section 83 must be strictly followed and that jurisdiction to pass an attachment order cannot be assumed unless a proclamation under Section 82 of the Code has been issued. The court noted that the normal rule is for the magistrate to wait for 30 days to allow the accused to appear in court after the proclamation is issued. The court also stressed that Sections 82 and 83 of the Code should be read in harmony and that the attachment order should be at a distance of not less than 30 days from the date of publication under Section 82, except in cases covered by the proviso to Section 83(1). The proviso cannot be used arbitrarily, and the magistrate must exercise discretion to order attachment simultaneously with the issue of publication under Section 82 in only two conditions, namely, when the accused is about to dispose of their property or remove it from the local jurisdiction of the court.

Study Notes

Section 84 of the Code of Criminal Procedure, 1973 deals with claims and objections to attachment. The section outlines the procedure for anyone who wishes to make a claim or objection to the attachment of property under section 83.

Here are the key points of Section 84:

-Time limit for claims and objections: Any person other than the proclaimed person can prefer a claim or make an objection to the attachment of any property under section 83, within six months from the date of such attachment.

Example: If property belonging to Mr. X was attached on 1st January 2023, any person other than Mr. X can prefer a claim or make an objection to the attachment until 1st July 2023.

-Grounds for claim or objection: The claim or objection should be on the grounds that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83.

Example: If a property attached under section 83 belongs to Mr. X, but his brother Mr. Y claims that the property belongs to him, Mr. Y can make a claim stating that he has an interest in the property and that his interest is not liable to attachment under section 83.

-Inquiry into claim or objection: The Court in which the order of attachment is issued, or the Chief Judicial Magistrate of the district in which the attachment is made, shall inquire into the claim or objection.

Example: If a property attached under section 83 is in district A, but the order of attachment was issued by the Court in district B, the claim or objection can be made in either Court. The Court in which the claim or objection is made will inquire into it.

-Disallowance of claim or objection: If the Court disallows a claim or objection, in whole or in part, an order to that effect will be made.

-Right to file a suit: Any person whose claim or objection has been disallowed, in whole or in part, can file a suit within a period of one year from the date of the order to establish the right which he claims in respect of the property in dispute.

Example: If Mr. Y’s claim to a property attached under section 83 is disallowed by the Court, he can file a suit within a year to establish his right in the property.

Study Notes

Section 85 of the Criminal Procedure Code lays down provisions for the release, sale, and restoration of attached property. The detailed notes with examples are as follows:

1.Release of property if the proclaimed person appears:

• If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
• For example, if a person is proclaimed under section 82 and his property is attached under section 83, but he appears before the Court within the specified time, the property shall be released from the attachment.

2.Property at the disposal of the State Government:

• 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.
• However, the property cannot be sold until the expiration of six months from the date of attachment, and until any claim or objection made under section 84 has been disposed of, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner.
• For example, if a person is proclaimed under section 82 and his property is attached under section 83, but he does not appear within the specified time, the property shall be at the disposal of the State Government. The property cannot be sold until the expiration of six months from the date of attachment, and until any claim or objection made under section 84 has been disposed of.

3.Restoration of property:

• If within two years from the date of attachment, any person whose property is or has been at the disposal of the State Government, appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, and proves to the satisfaction of the 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 shall be delivered to him.
• If the property 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, after satisfying therefrom all costs incurred in consequence of the attachment, shall be delivered to him.
• For example, if a person’s property is attached under section 83, and the property is later sold under section 85(2), but the person appears before the Court within two years and proves that he did not abscond or conceal himself and did not have proper notice of the proclamation, the net proceeds of the sale or the remaining property shall be delivered to him after satisfying the costs incurred in consequence of the attachment.
  

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This section should be read along with:-

Cr.P.C:

• 458(1)

Study Notes

Section 86 of the Criminal Procedure Code (CrPC) deals with the appeal that can be filed by a person who is aggrieved by any refusal to deliver property or the proceeds of the sale thereof under sub-section (3) of section 85. Here are the detailed notes :

1. Right to appeal: Any person referred to in sub-section (3) of section 85 has the right to appeal against the refusal to deliver property or the proceeds of the sale thereof.
2. Court of appeal: The appeal shall lie to the Court to which appeals ordinarily lie from the Court that has refused relief under s. 85(3), if the order had been a sentence.
3. Void decision: If the appeal is decided by any other court apart from the one mentioned in point 2, the decision would be void.
4. Scope of the appeal: The scope of the appeal is limited to the conditions specified in section 85(3), which means that the appellant can only challenge the decision based on the grounds mentioned in section 85(3).

In summary, section 86 of the CrPC provides a remedy for a person who is aggrieved by the refusal to deliver property or the proceeds of the sale thereof under section 85(3). The person can appeal to the Court to which appeals ordinarily lie from the Court that has refused relief, but the scope of the appeal is limited to the conditions specified in section 85(3).