Any person who visits the court does it with the intent of finding a resolution to his problem or a settlement to his dispute. It is anything but natural for him to expect the other party to be present and willing to fight out the dispute before the court so all the parties can come out with solutions to those matters.
But there are
times when you might take your case to the court with the intention to fight
out the dispute against the opposite party before the judge, but the emotion is
not reciprocated by the opposite party and on the contrary to what you might
have in mind, the opposite party decides to evade the process or simply refuse
to identify any such case dispute or does not wish to attend the proceedings
for whatever reasons. In such a situation where the opposite party is not
willing to present their side of the case before the court of law for whatever reasons,
the party with the dispute is going to suffer the consequences of the dispute
not coming to an end. And maybe this is the reason for the party to evade the
process of law, just to cause this suffering to the party.
In criminal
trial however, when an accused decides to not attend the proceedings in a court
of law, the consequences are not just limited to slight inconvenience of the
complainant or victim. Depending upon the nature and gravity of the offence, it
can be concerned with the law-and-order system, its functioning, its impact on
the society at large or factors like level of deterrence which needs to be
conveyed from that particular case by citing it as an example in our society. All
these factors can take a serious hit along with the miscarriage of justice for
the complainant or the victim in the case.
Hence, keeping
such a situation in mind, the draftsmen of our criminal codes and Sanhita’s inserted
provisions specific to tackle with such situations where the accused or other
party relevant to the case decides to evade the process of justice by not
appearing before the court of law when it is asked to do so and evade summons
and warrants issued by the court of law. The Sanhita provides a detailed
process of how to deal in such situations, what the court needs to do and what
all steps can be taken to ensure that presence of such a person can be secured
by the court eventually.
The process is mentioned in from Section 84 to 89 of BNSS, where it is made clear about the process as to when and how a court has the power to issue proclamation against a person relevant to a criminal trial and role of all parties in and after issuance of proclamation by any criminal court. So now that we have a general idea of what we are diving into, lets start with learning more about the relevant provisions one by one.
Proclamation
Issued by a Court
Section 84:
Proclamation for Person Absconding
When a court has
a reason to believe (whether based on evidence or not) that an individual
against whom a warrant has been issued is absconding or deliberately concealing
themselves to avoid execution of the warrant, the court can take certain steps
mentioned in section 84 BNSS in the form of a Proclamation being issued against
such a person.
The Prerequisites
for a Proclamation:
When a court has
issued Warrants of arrest against a person and it has reason to believe that
the person has absconded, it may publish a written proclamation against such
person.
When a court has
reason to believe that the person in question is evading arrest, it may publish
a written proclamation against such person.
The
Proclamation:
When the above prerequisites
are fulfilled, the court can issue proclamation which requires the individual
to appear at a specified place and time mentioned in the proclamation, which
must be at least thirty days from the date of publishing the proclamation.
Essentially,
this serves as a last opportunity for the absconding person to voluntarily
surrender before the court and explain if the court has misunderstood the
circumstances and if the non-appearance before the court was not deliberate.
Publication
Requirements:
The court must ensure that the proclamation reaches the public eye. More so, the court has to ensure that efforts are made so that little to no chance is left for the proclamation to reach the person for it is being issued to. In either of the case the main aim is to get the person who is evading warrants of arrest, to know that the court has took notice of his actions and wants him/her to surrender before the process of law, if such actions are not deliberate. It does so through the following means:
- Public Reading: Publicly reading the proclamation in a conspicuous place in the town or village where the person ordinarily resides.
- House Affixing: Affixing a copy of the proclamation to a conspicuous part of the person’s residence or to a prominent location in the town or village.
- Court-House Stickiness: Another copy sticks to a prominent spot in the court-house
- Optional Newspaper Appearance: Optionally, publishing a copy of the proclamation in a daily newspaper circulating in the person’s usual place of residence.
Conclusive
Evidence:
A written
statement by the court confirming that the proclamation was duly published
serves as conclusive evidence that the requirements of Section 84 have been
met.
In other words,
once the court attests to the proper publication, it establishes that the
proclamation was indeed made on the specified day, and that the contents of the
Section 84 have been met. This is particularly important to proceed further
with effects of proclamation as we will see in Section 85-89. It was important
for the lawmakers to remove any element of ambiguity when it comes to the
compliance of the provisions of issuing a proclamation against a person, as the
whole process shall depend upon this very element, and a slight loophole could
render the whole process irrelevant. Hence in the provision itself, it is clarified
that once publication is made and court issues a written stamen in this regard,
it is a conclusive proof in itself.
Consequences
of Non-Appearance:
If the person accused of an offense for which the punishment is imprisonment of ten years or more, life imprisonment, or death, fails to appear as required by the proclamation, the court may, after making an inquiry:
- Pronounce them a proclaimed offender.
- Make a formal declaration to that effect.
The
Proclaimed Offender
Definition:
A proclaimed offender is someone who, despite the court’s proclamation, decides
to keep their invisibility cloak on. They fail to appear at the specified place
and time required by the proclamation.
The court after making
some inquiry, can officially label a person evading arrest as a proclaimed
offender. A declaration is made to that effect, on basis of which actions
mentioned with respect to property of the proclaimed offender can be attached,
identified, sold and restored by the court as per the situation of the case. This
is also done by the court so as to compel the person evading arrest, to come forward
and reveal himself.
Declaration:
The court makes it official: “You, sir, are now a proclaimed offender!” And
just like that, a Proclaimed Offender’s legal status changes. Now this record
will be attached and updated to all his government identity cards and
identifications, bank accounts etc. making it difficult for any person to purposely
stay hidden for a long time from the process of law.
Section 85: Attachment of Property of Person Absconding
When an
individual against whom a proclamation has been issued under Section 84 for
absconding, fails to appear before the court, the court may take further steps
asper Section 85 BNSS and order the attachment of any property, movable or
immovable, belonging to the proclaimed offender as declared under the provisions
of Section 84 BNSS.
Court’s Discretion:
The court
issuing the proclamation has the discretion to order attachment. The reasons
for this decision must be recorded in writing. This discretion can be used
anytime after the issue of proclamation. However, if the court is satisfied that
the proclaimed offender is about to dispose off whole or part of his property
or is about to remove his property from the jurisdiction of the court, the
court can issue directions for attachment of property with the issuance of proclamation
itself in Section 84.
Types of
Property:
The court can
attach both movable and immovable property of the proclaimed offender. This
includes land, buildings, vehicles, bank accounts, jewellery, and any other
assets owned by the proclaimed person anywhere in court’s jurisdiction.
Procedure:
The court will issue an order specifying the property to be attached. The property remains under court control until further orders. The property can be taken in control by any or all of the following ways:
- If the property is a debt or movable property it can be seized. If it is an immovable property, it can be attached by taking possession of property
- Or by appointment of a court receiver
- Or by a written order prohibiting delivery or payment of rent as the case may be, to the proclaimed person or anyone on his behalf
- If the proclaimed person eventually appears, the court may release the attached property.
- If the attached property consists of perishable goods or livestock, then the court can order for immediate sale of the property thereof and the proceeds of the sale shall be taken up for attachment purposes.
Purpose of
Attachment:
The primary
purpose is to secure the interests of justice and ensure that the proclaimed
person does not evade legal consequences. By attaching property, the court
creates a financial stake for the absconding individual to appear before the
court.
Section 86: Identification and Attachment of Property of Proclaimed Person
Section 86
focuses on the court requesting for identification, attachment and forfeiture
of the property of a person who has been proclaimed as an offender
When a person is
declared a proclaimed offender, their property becomes subject to attachment.
Process: The
court initiates this process based on a written request from an officer usually
not below the rank of Superintendent of Police or Commissioner of Police, who in
turn requests the court for such identification, attachment and forfeiture of
the property in accordance with Chapter VIII BNSS (Reciprocal Arrangements for Assistance
in Certain Matters and Procedure for Attachment and Forfeiture of Property) .
The objective is
to secure the interests of justice and prevent the proclaimed person from
evading legal consequences.
Section 87: Claims and Objections to Attachment
If any person wants,
they can prefer claims or objections within six months from the date of
attachment under Section 85,
any person other
than the proclaimed offender can prefer a claim or raise an objection.
The claimant or objector
must assert that they have an interest in the attached property, which is not
liable for attachment under Section 85. This is added by the lawmakers to effectively
hear the voices of those who are caught in between a misinterpretation or
miscommunication of the process of law and have not been given an opportunity to
be heard.
For example, if
a court declares ‘X’ as a proclaimed offender, and appoints ‘Y’ as a court receiver
and asks him to attach X’s house in Delhi, but ‘Y’ mistakenly attaches house of
Mr ‘Z’, X’s neighbour in Delhi, assuming it to be the house that belongs to X. At
this point, ‘Z’ has power to move his objection to the court and put his voice across,
explaining that there has been a misinterpretation or miscommunication during
execution of the order of the court by ‘Y’, and that the house attached belongs
to ‘Z’ and not ’X’, as specifically stated in the order.
Inquiry and
Decision:
The court shall
inquire into the claim or objection and then it may allow or disallow the claim
in whole or in part.
If the claimant
or objector passes away during this process, their legal representative can
continue the claim.
Section 88: Release, Sale, and Restoration of Attached Property
There can be
either of the two situations as follows:
Proclaimed Person Appears:
- If the proclaimed person appears within the time specified in the proclamation which is usually at least thirty days from the proclamation being issued, the court shall make an order releasing the attached property.
- This provision encourages the proclaimed person to surrender and face legal proceedings, put his defence and the courts being able to hear both parties and making an informed decision in the matter.
Proclaimed
Person Does Not Appear:
If the
proclaimed person does not appear within the specified time, the attached
property remains at the disposal of the state. The court may accordingly decide
to sell the property to satisfy any fines or penalties imposed upon the proclaimed
offender in deciding of the case thereof.
Conclusion
The concept of Proclamation
and proclaimed offender are what makes a criminal trial to be taken so
seriously by any person involved in it. For those who think they can commit an
a offence and then evade arrest as a consequence of the act, the law simply challenges
such individual with a question “until when and at what cost?”. So, there you
have it the court’s proclamation and the elusive proclaimed offender. It’s like
a legal game of cat and mouse, but with higher stakes. Justice has its own ways
of catching up, even if someone thinks they can slip through the cracks.
Sources:
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Related Blogs:
Conditions Apply: What You Need to Know About Anticipatory Bail
From Maintenance Orders to It's Enforcement: A Guide to Sections 144-147 BNSS
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advice. Consult a qualified legal professional for specific cases.
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