Court has to wait until expiry of 30 days, to enable the accused to appear in terms of proclamation u/s 82 of Cr.P.C- Explain

Process under Sections 82 and 83 cannot be issued unless it is established that a warrant has already been issued against the person wanted and that person is absconding

Section 82 Cr. P.C. mandates and empowers the Court to issue proclamation against a person when he has reason to believe when a warrant issued against him remains unexecuted for evasion, concealment or abscondance of such person. Section 83 Cr. P.C. mandates and empowers the Court issuing a proclamation under Section 82 of the Code aforesaid for the reasons to be recorded in writing at any time after the issue of the proclamation order to attach any property movable or immovable or both, belonging to the proclaimed person. Proviso to Section 83 of the Code also provides 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 is about to dispose of the whole or any part of the property or to remove the said property from the local jurisdiction of the Court it may order the attachment of the property simultaneously with the issue of the proclamation. It cannot be said that process under Section 83 cannot be issued unless process under Section 82 is issued first. It is also not necessary that process under Section 83 should be delayed till the time fixed in the process under Section 82 has elapsed. The only aspect of the matter is that the process under Sections 82 and 83 cannot be issued unless it is established that a warrant has already been issued against the person wanted and that person is absconding. [Safayatullah Khan And Ors. vs The State Of Bihar (Jharkhand) 2003 (2) BLJR 1046]

WARRANT

The requirement is that it is to be issued in respect of a person against whom warrant is issued by the court and the court finds from the evidence or otherwise that such person is absconding or concealing. Thus, the power to issue such proclamation is not restricted in case of any particular offence. Section 82(2) Cr.P.C. then makes a provision in regard to the manner in which the proclamation is to be published. Thereafter sub- section (3) of Section 82 Cr.P.C. provides that a statement in writing by the court issuing the proclamation that it was duly published etc. shall be a conclusive evidence that the requirement under the section has been complied with. Then comes sub-section (4) of Section 82 Cr.P.C. introduced in the year 2005 and it provides that where a proclamation published under sub-section (1) is in respect of a person accused of offences punishable under the sections are as mentioned in the sub-section and such person fails to appear at specified place and the time required by proclamation, the court may, after making such inquiry as it deems fit, pronounce him a proclaimed offender and make a declaration to that effect. Though this sub-section has made a mention to some of the offences, but this sub-section does not say that such a proclamation can be made only in respect of these offences alone. There is no distinction so far as publishing of a written proclamation requiring absconding person to appear at a specific place is concerned. [Punjab-Haryana High Court in Rajiv vs State Of Haryana  12/10/ 2011]

Sections 82 and 83 of Cr.P.C are reproduced as under:

Section 82. Proclamation for person absconding.-(1) 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 specific place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) 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.

(3) 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) Where a proclamation published under Sub-section (1) is in respect of a person accused of an offence punishable under Section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code, 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) 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).

Section 83. Attachment of property of person absconding.-(1) 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 or 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) 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 (5 of 1908).

The Code of Criminal Procedure has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies:

(i) issuing of a proclamation (Section 82)

(ii) attachment or sale of property (Section 83)

The sine qua non for an action under Section 82 is the prior issuance of warrant of arrest by the Court. There must be a report before the Magistrate that the person against whom the warrant was issued by him had absconded or had been concealing himself so that such warrant can be issued. An attachment warrant can be issued only after the issuance of proclamation.

The expression ‘reason to believe’ occurring in Section 82 Cr.P.C. suggests that the Court must be subjectively satisfied that the person has absconded or has concealed himself on the materials before him. The term ‘absconded’ is not to be understood as implying necessarily that a person leaves the place in which he is. Its etymological and its ordinary sense is to hide oneself. Further, under Section 82 Cr.P.C. the Court issuing proclamation must record its satisfaction that accused had ‘absconded’ or ‘concealed himself.’

 The three Clauses (a), (b), and (c) of Sub-section (2) (i) of Section 82 Cr.P.C. are conjuctive and not disjunctive. The factum of valid publication depends on the satisfaction of each of these clauses. Clause (ii) of Sub-section (2) is optional; it is not an alternative to Clause (1). The latter clause is mandatory.

The proclamation issued under Section 82 Cr.P.C. requires appearance of the person, against whom warrant has been issued, at a specified time, at a specified place. The date fixed should be not less than thirty days from the date of publication of the proclamation. If that be so, simultaneous attachment of property cannot be effected.

The procedure laid down under Section 83 has to be followed strictly. Jurisdiction to pass attachment order cannot be assumed unless a proclamation under Section 82 Cr.P.C. 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 the proclamation. The words ‘at any time after the issue of proclamation’ are not to be interpreted in isolation. The key for gathering the intention of the law makers is to be found in Section 82 Cr.P.C. Sections 82 and 83 Cr.P.C. are to be read in harmony. Thus except in cases covered by the proviso to Section 82(1) the attachment order has to maintain a distance of not less than 30 days from the date of the publication under Section 82. The words ‘at any time’ in Section 83(1) only mean that if after the issue of proclamation either of the two conditions mentioned in Clauses (a) and (b) of the proviso to Section 83(1) come into existence, an order of attachment may be made without waiting for 30 days to expire. Even in such a case the Court has to record its reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.


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