Utkarsh Mishra Crpc, DSMNRU, 2017

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

LUCKNOW

A RESEARCH PROJECT ON

PROCLAMATION AND ATTACHMENT

(UNDER THE SUPERVISION OF DR. Girjesh Shukla )

AN ASSIGNMENT FOR CrPC

SUBMITTED TO: SUBMITTED BY

GULAB RAI SIR UTKARSH MISHRA

Assistant Professor, B.COM LL.B 6TH SEM.

DSMNRU DSMNRU
 ACKNOWLEDGEMENT

I, UTKARSH MISHRA I feel myself highly elated, as it gives me tremendous pleasure to come
out with work on the topic
PROCLAMATION AND ATTACHMENT I started this project two weeks ago on its
completion I feel that I have not only successfully completed it but also earned an invaluable
learning experience. First of all I express my sincere gratitude to my teacher Dr. Girjesh Shukla
SIR who enlightened me with such a wonderful and elucidating research topic. Without HIM, I
think I would have accomplished only a fraction of what I eventually did. I thank his for putting
his trust in me and giving me a project topic such as this and for having the faith in me to deliver.
Her sincere and honest approach have always inspired me and pulled me back on track whenever
I went off-track. sir, thank you for an opportunity to help me grow. I also express my heartfelt
gratitude to staff and help for the completion of this project. Next I express my humble gratitude
to my parents for their constant motivation and selfless support. I would thank my brother for
guiding me. I also express m y gratitude to all the class mates for helping me as and when required
and must say that working on this project was a great experience. I bow my head to the almighty
for being ever graceful to me.

UTKARSH MISHRA

B.COM LL.B (H) 6TH SEM.

DSMNRU
 INDEX

Introduction …………………………………………………………………
Which court can order for attachment……………………………………….

What is the difference between summons warrants and proclamation………

Leading case………………………………………………………………….

84. Claims and objections to attachment……………………………………...

85. Release, sale and restoration of attached property………………………..

86. Appeal from order rejecting application for restoration of attached property

Remedy available to an aggrieved person-…………………………………….

Bibliography……………………………………………………………………
 INTRODUCTION

Section 82-86 talks about proclamation and attachment under Crpc. First of all discuss about
proclamation. As per section 82 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.

(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.

(e) 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.1

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.2

1
Batuk lal, the code of criminal procedure 89,(central law agency, allahbad, 2nd edition 2010
2
Chandra Kunwar v. .... Jumala-63 P. R. 1867 Labh Singh v Gopi— 15 P. R. 1903
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.3

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.4

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.

3
Vellayappa Chettiar vs Alagappa Chettiar AIR 1942 Mad 289
4
Shewdyal Sing v. Griban Sing 6 Suth WR Cr 73 (2)
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.5

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.6

Which court can order for attachment

It is the court issuing proclamation under section 82 which can order for attachment under section
83. No court can do so.7

What is the difference between summons warrants and proclamation

Summons, Warrants and Proclamation are the measures by which court seeks to ensure appearance
of parties/accused/witnesses before itself, ranging from commutative to compulsive.

A Summon is an order to appear before the court usually in criminal matters through a police
officer.
If summons are not complied with or in extremely serious matters in the first instance only – court
may issue a warrant.

5
Batuk lal, the code of criminal procedure 92,(central law agency, allahbad, 2nd edition 2010
6
Bonde AH,—1939 2 Cal. 419
7
Pal singh v. state, AIR 1955 punj 18.
A warrant is an order to a police officer usually – to procure a person before the Court. A warrant
may be bailable or non bailable – in the former the police officer executing the warrant is
empowered to take security for the person’s appearance before the court without taking him in
custody, on the other hand – when a warrant is non bailable the police officer arrests the person
and produces him before the court, the court then may remand him to custody or grant bail.

However if the person whose appearance is sought, absconds or avoids warrants proclamation can
be done. Under proclamation a person is given the final chance to produce himself – this
proclamation is pasted at a conspicuous place of his residence or last known address and at the
court house (also in national newspapers) giving him 30 days or more to appear in the court as a
final chance – if he fails to – he is declared a proclaimed offender – being declared a PO has grave
ramifications – a person can be arrested sans warrant by any police officer in the country. His
property can be attached and sold. Usually where there is chance of person leaving country – a
lookout circular is also issued seeking to rule out chances of leaving the country.8

LEADING CASE

ANTARYAMI BARIK AND ORS V. STATE OF ORISSA

AIR 2016 CRL 1231

HON'BLE JUDGES/CORAM: S.K. MISHRA, J.

1. Heard learned counsel for the petitioners and learned Addl. Standing Counsel for the State. The
petitioners, being the accused persons in G.R. Case No. 235/2004 of the Court of learned S.D.J.M.,
Udala, has assailed the order dated 10-11-2005 passed by the said Court issuing processes under
Sections 82 and 83 of the Cr.P.C. declaring them as absconders and to attach their property, without
specifying the property, to compel them for their appearance on 9-12-2003. The offences alleged
in this case are 420/294/506/34 of the IPC.
2. Learned counsel for the petitioners drawing attention of this Court to the provisions of Sections
82 and 83 of the Cr.P.C. contends that the very basic requirements of Sections 82 and 83 of the
Cr.P.C. have not been satisfied in this case and the order of the learned S.D.J.M., Udala is silent
on that score. Bare reading of Section 82 of the Cr.P.C. reveals that 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. So in order
to issue a proclamation under sub-section (1) of Section 82 of the Cr.P.C. the Court must be
satisfied 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 issue a proclamation under sub-
section (1) of Section 82 of the Cr.P.C.

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3. Now, in this case it is apparent from the record that the learned S.D.J.M., Udala has observed
that the I.O. has prayed to issue processes under Sections 82 and 83 of the Cr.P.C. against the
petitioners. He further observed that both are residents of village Garadihi, P.S. Berhampur,
District Balasore and as the accused persons are yet to be arrested though N.B.W. has been issued
on 30-4-2005, in spite of several raids conducted by the I.O. and the accused persons are untraced.
The learned S.D.J.M. was satisfied from the case diary that the O.I.C. has taken sincere steps to
arrest the accused persons. Accordingly the learned S.D.J.M., Udala allowed the prayer. There is
no finding by the learned S.D.J.M. that the persons have absconded or concealing themselves so
that warrant cannot be executed. So the order issuing proclamation under sub-section (1) of Section
82 of the Cr.P.C. is not complied with.
4. Moreover, in order to issue an order of attachment of property of a person absconding under
Section 83 of the Cr.P.C., the Court issuing a proclamation under Section 82 of the Cr.P.C., 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 the Court is satisfied 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. Only on satisfaction
of such condition, the Court may order the attachment simultaneously with the issue of the
proclamation. The order passed by the learned S.D.J.M., Udala is cryptic one. No reasons have
been given in the order. It is also not apparent from the record that an affidavit has not been filed
to the effect that the proclamation is about to dispose or remove the whole or any part of his
property belong to him, the order cannot be sustained. It is well settled law of land that reason is
the heartbeat of orders passed by the Court. Reasons always show the basis on which the learned
Court came to a particular conclusion and absence of reasons in an order itself is violative of
principles of natural justice.
5. In that view of the matter, the order dated 10-11-2005 passed by learned S.D.J.M., Udala, in
G.R. Case No. 235/2004 is hereby quashed. However, the Investigating Officer may file an
appropriate application giving affidavit, so that the conditions laid down under Sections 82 and 83
of the Cr.P.C. shall be complied with. On such event, the learned S.D.J.M. shall apply his mind
and dispose of the same by a reasoned order in the light of the observations made in the preceding
paragraphs of the order. The CRLMC is, accordingly, disposed of.9

84. Claims and objections to attachment

(1) If any claim is preferred to, or objection made to the attachment of, any property attached under
section 83, 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 83, 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.

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(2) 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 83, in the Court of the Chief Judicial Magistrate
of the district in which the attachment is made

(3) 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

(4) 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

85. Release, sale and restoration of attached property

(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall
make an order releasing the property from the attachment

(2) 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 84 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

(3) 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
 86. Appeal from order rejecting application for restoration of attached
property

Any person referred to in sub-section (3) of section 85, 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

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.
 BIBLIOGRAPHY
Primary sources
 Code of criminal procedure 1973
Secondary sources-
Books
Code of criminal procedure by batuk lal
website
http://www.lawweb.in
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