Proclamation and Attachment under Bharatiya Nagarik Suraksha Sanhita, 2023

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Proclamation and Attachment under Bharatiya Nagarik Suraksha Sanhita, 2023

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26-Jul-2024

Source: Allahabad High Court

Why in News?

A bench of Justice Abdul Moin held that that the property attached can only be that which belongs to the person absconding and not one in which he resides.

The Allahabad High Court held this in the case of Faiyaz Abbas v. State of U.P.

What is the Background of Faiyaz Abbas v. State of U.P. Case?

A First Information Report was lodged by Sayed Ali Hasan against Faiyaz Abbas (the appellant), Faiz Abbas (son of appellant) and Guddo (wife of appellant).
The FIR was lodged under Section 3 and 4 of Protection of Children from Sexual Offences Act, 2012 (POCSO) and Section 323, 328, 363,376, 504 and 506 of Indian Penal Code, 1860 (IPC).
The appearance of Faiz Abbas, the son of appellant, could not be ensured, therefore an order under Section 82 of Criminal Procedure Code, 1973 (CrPC).
Subsequently an order under Section 83 of CrPC was also passed whereby the house of the appellant was attached.
As the property belonged to the father of the person of the person absconding, the appellant files his objections under Section 84 of CrPC.
The matter went to the lower Court where the order of attachment was held to be valid as the accused is residing in two rooms of the entire house. Therefore, objections filed by appellant were rejected.
The appeal was hence filed before the High Court

What were the Court’s Observations?

The High Court observed in this case that from the perusal of Section 82 and Section 83 of CrPC it can be ascertained that the property attached should be one belonging to the proclaimed person.
Thus, in order to pass an order under Section 83 there should be prima facie finding that the property for which attachment order is being passed belongs to the accused and without such finding no such order can be passed.
The Court gave an example by laying down that mere residence of the proclaimed person cannot empower the concerned authority to seize or attach the rented property as the said rented property would not belong to the proclaimed person.
To elaborate, the Court cited the case of Nazir Ahmed v. King Emperor (1936) wherein the Privy Council held that when power is given to perform a certain act in a way it must be performed in that way only.

What is Proclamation under Section 82 of CrPC and Section 84 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)?

Section 82 of CrPC lays down the law regarding proclamation for person absconding. In the BNSS this can be found under Section 84 of BNSS.
Comparison between CrPC and BNSS:

Section 82 of CrPC	Section 84 of BNSS
(1) 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	(1) 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.
(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.	(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	(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 (45 of 1860), 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.	(4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force, 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)	(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).

New features added by BNSS:
- The major change is regarding the proclaimed offender under Section 84(4) of BNSS.
- Under BNSS proclaimed offender would be any person accused of an offence which is made punishable with imprisonment of ten years or more, or imprisonment for life or with death under the Bharatiya Nyaya Sanhita, 2023 or under any other law for the time being in force, and who fails to appear as required by the proclamation.

What is Attachment of property under Section 83 of CrPC and Section 85 of BNSS?

Section 83 of CrPC lays down attachment of property of person absconding. Under BNSS this is found under Section 84 of BNSS. It is to be noted that an additional provision is added under Section 85 of BNSS.
Comparison between CrPC and BNSS

Section 83 of CrPC	Section 85 of BNSS
(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 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.	(1) The Court issuing a proclamation under section 84 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 of property 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.	(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.	(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.	(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.	(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).	(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.

It is to be noted that there are no changes made in BNSS with respect to this provison. The new addition is, however, a new provision in the form of Section 86 of BNSS.
Section 86 of BNSS provides:
- The Court may, on the written request from a police officer not below the rank of the Superintendent of Police or Commissioner of Police, initiate the process of requesting assistance from a Court or an authority in the contracting State for identification, attachment and forfeiture of property belonging to a proclaimed person in accordance with the procedure provided in Chapter VIII.