ABSTRACT
Personal appearance of the accused before the court is essential to fair hearing which is an indispensable ingredient of natural justice. Court allows attachment of private property of accused to compel him to appear before the court. This paper contains various subtopics for profound understanding of the nuances of the attachment of property.
This paper diligently seeks to explore the specific instances when the property of any person can be attached in criminal cases. The provision of the Criminal Procedure Code, 1973 provides comprehensive procedures for attachment of the property. It, further deals with the modes of attachment of property in criminal case.
Right to property is guaranteed right under the Article 300A of the constitution of India. Attachment of property in the first glance appears to constitute the violation of the said provision. However, the paper deals with this aspect of interpretation by the court as to how both provisions are in consonance with each other.
The procedure for release, sale and restoration of the property have also been explored in this paper. It must be noted that the attachment is final and absolute. There can under no circumstances be restoration and release of the property unless there exist any genuine grounds for doing so. However, the attachment of property in criminal cases and cases like recovery of loans and default of payment of taxes etc. are different.
The objective of the study is to know the Provisions in the Criminal Procedure code, 1973which deals with release, sale and restoration of the property and to understand the rationale behind the attachment of property by reading the decisions of the court.
1. INTRODUCTION
Fair trials require that the trial proceedings are conducted in the presence of accused and that a fair chance he is given to defend himself. Criminal Procedure Code, 1973 provides for certain processes that compel a person to appear before the court of law. Subsequently, the court issues summons to the person whose presence is required in court of law. Then, court issues the warrants for appearance of the person so required. Generally, the court issues summon first and if it remains unexecuted then warrant is issued. However, it is discretion of court to issue warrant before or subsequent of issuing summons. If anyone doesn’t comply with the warrant and summons of the court then court declare him/her as proclaimed person. After the expiry of the specific time provided in proclamation so made, the court can attach the property of that person.
It is possible that the property of somebody else’s had also been attached along with the proclaimed person. In this case the person can claim his interest in the property. The property shall be returned to him. In case of Proclaimed person even after attachment, if the person appears before the court within specified period of time, then the court can release his property. Otherwise, the property shall be at the disposal of the government. However, if it is proved that the person was not absconding or escaping the law then his property shall be returned or if sold by the government then the proceeds is returned or if the part of property is disposed of the proceeds from the sale and the residue is returned to the person.
As mentioned earlier the code has provided ample powers to execute a warrant. But if it remains unexecuted, there are two more remedies: (1) issuing proclamation (section 82) and (2) attachment and sale of property (section 83). Simultaneous issue of both process, viz warrant of arrest has been issued that the court can, if it has reason to believe that the person has absconded or hiding, issue proclamation[1] while these remedies are being pursued court may, if the absconder is an accused person, proceed under section 299 of the Indian Penal Code.
Article 300A of the Constitution of India reads as “No person shall be deprived of his property save by authority of law.” It means there can be no deprivation of right to property arbitrarily. However, this right can be deprived by the authority of law. In the Criminal Procedure Code, attachment of property is contrary to the right to property one has been conferred by the Constitution of India under Article 300A. This paper envisages all the crucial questions pertinent regarding attachment of property.
- PROCLAMATION OF ANY PERSON
The code firstly contemplates two methods of procuring the attendance of accused at his trial i.e. issuing summon or by arrest or detention. The stringent provision under Section 82 would exert considerable pressure on accused and would impel him to appear before the court. When the former two can’t be executed then court makes proclamation. A proclamation shall be made in following ways:
- There must be public reading in some conspicuous place of the town or village where such person ordinarily resides;
- 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.
- A copy of the proclamation shall be affixed to some conspicuous part of the court house.
These three aforementioned conditions are mandatory. However, the proclamation can also be published in daily newspaper circulating in the place in which such person ordinarily resides. This is not mandatory and depends upon the court. The time given to accused to appear before the court must not be less than thirty days.
Where in case triable by a Court of Sessions, the police has not submitted charge-sheet, the petitioner has not been committed to the Court of Sessions, he has not be summoned under section 319 CrPC, to issue a non-bailable warrant of arrest accused would not be legal and liable to be quashed.[2] Where the accused didn’t get anticipatory bail, still proclamation of absconder and attachment of his property under section 82 and section 83 can be issued against him.[3]
The sine qua non for an action under this section 82 is the prior issuance of arrest by the Court. There must be a report before the magistrate that the person against whom the arrest was issued by him has absconded or had been concealing himself so that such warrant can issued. An attachment warrant can be issued only after the issuance of Proclamation.[4]
In prosecution of Director of Company for offence under section 454(5),Indian Companies Act, for non-filing of Statement of affairs, when the director is evading appearance before the court or has absconded, the court passing winding up order can issue process under section 82 and section 83 of CrPC for presence of the Director of the company before the court.[5]
The expression “reason to believe” occurring in this section suggests that the Metropolitan Magistrate must subjectively satisfied that the person has absconded or has concealed himself on the materials before him.[6] Where an accused, who is well aware of the warrant of arrest issued against him, and also regarding notices issued by investigating officers, is obviously evading arrest by not coming to India, at the earliest, to face the criminal case, he can be treated as absconder.[7] An army personnel who is in active service and in operational area cannot be said that he is avoiding the service, and as such he cannot be declared a proclaimed offender.[8]
When in order to evade the process of law a person is hiding from his place of residence, he is said to ‘abscond’.[9] The term absconded is not to be understood as implying that a person leave the place in which he is. It’s etymological, and its ordinary sense is to hide oneself; and its matter not whether a person departs from a place or remains in it, if he conceals himself; nor does the term apply only to the commencement of the concealment. If a person having concealed himself before the process issues continues to do so, after it has issued, he absconds.[10]The person leaving India before the order of preventive detention was passed but continues to be in abroad with a view to evade warrant of arrest is a person absconding within the meaning of this section.[11]Under Section 82 the Magistrate issuing proclamation must record his satisfaction that the accused has absconded or concealed himself.
Proof Required Proving the Proclamation
What is required is the evidence of the effect that he had known that he was wanted and was avoiding arrest. The value of evidence is not in merely in obtaining order from a court but it is in the fact that the proclamation directed by the court was really proclaimed at the place of usual living of the person concerned and thereafter his belongings were attached.[12] Sub section 3 does not override the requirements of the Evidence Act, nor does it make the proclamation of the evidence that the warrant had been issued. The method of proving the warrant is not a requirement of the section, which merely deals with the proclamation itself and the mode of publishing it and the like. The section doesn’t make proclamation equivalent to notice to the public of its contents, even to the inhabitants of the town or village where it is published.[13]
A proclamation which omits to mention the time within which and the place at which the absconder should present himself to save the sale of his property is nullity.[14] The proclamation must give clear thirty days for the appearance of accused, the provision as to thirty days proclamation being invalid would be quashed.Mention of the lesser period than that required under the section will make the proclamation ineffective and the defect is not curable one under section 465.[15] The publication of court can also order for the publication of proclamation in appropriate newspaper in addition to the others modes provided.[16]
To issue notice through post is not a procedure warranted by this code for compelling the appearance of parties in court. The ordinary process for compelling appearance is in the first instance, to issue summons under section 61; and when summon so issued can’t be served, it is the duty of the court to issue warrant. When the warrant also can’t be executed the court has to proceed under section 82 and section 83 and issue a proclamation and attach the property of the person who is evading service of process.[17]
Where a co-accused has been appearing before the court and the court and other accused have absconded, and the chances of the execution of non-bailable warrant against the accused is not bright, his case may be separated from other accused by the court, application by the police for the purpose is not required.[18]
The two new subsections (4) and (5) added by CrPC (Amendment) Act, 2005 empower the court to declare a person as proclaimed offender where he fails to appear at the specified place and time mentioned the proclamation issued under sub-section (1) of the section in relation to the offences mentioned. Section 174A of IPC makes punishable act of non-appearance in response to proclamation under Section 82 CrPC.
III. ATTACHMENT OF THE PROPERTY, MEANING.
The property of the person against whom a proclamation is issued under section 82 can be attached and later disposed of in order to compel his appearance in court. The section penalizes a person who seeks to avoid his arrest under a warrant and against whom a proclamation is issued under the previous section. For disobedience in proclamation he is liable to be punished under section 174 of the Indian Penal Code. This provision is devised to put additional pressure on the absconder by depriving him of his property, with a view to compel him to obedience.
The provisions of this code not being applicable to contempt proceedings, these sections cannot be availed of for securing the presence in alleged contemner or, in default, to attach his property.[19] The object of attaching property of an absconder is not to punish him but to compel his appearance. If the property has not been confiscated or disposed of the title thereof continues to vest in the owner and thereafter in his heirs.[20]Only the property of the absconder and not of some other person e.g. father of the absconder would be attached under section 83 CrPC.[21]
An order of attachment in the absence of the material to show that the accused was absconding was illegal.[22] Where accused didn’t get anticipatory bail, still proclamation of absconder and attachment of his property under section 82 and section 83 can be issued against him.[23]An order of attachment should not be passed in haste and without the proper application of mind. The court should wait for a period of thirty days to enable the accused to appear in terms of proclamation.[24]
Where a person’s name is continued to be shown as absconder in police papers for subsequent years due to wrong entry, without proclaiming him as absconder under section82 to section 85, his subsequent arrest without a warrant treating him as an absconder, is unjustified and wrongful as section 41 did not apply to the case.[25]
A land paying revenue to the state government can be attached by the District Collector only. When the land is attached and possession is taken over, the person taking it over becomes liable to pay the land revenue and the owner is exonerated. It is, therefore, seen that the collector the highest revenue officer of the district should, upon taking over possession record the fact of taking over possession by him or by any other person absolving the owner from the liability to land revenue. The moment possession is taken over, the owner is absolved from the payment of land revenue. In the instant case, it appears that there was no valid order of attachment as the land was revenue paying one and it should have been attached by the collector of the district not by the police officer.[26]
The procedure laid down under section 83 has to be followed strictly. Jurisdiction to pass an attachment order cannot be assumed unless a proclamation under section 82 of the code has been issued. The normal rule is that the magistrate has to wait until the expiry of thirty 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 of the code. section 82 and section 83 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 thirty days from the date of the publication under section 82. The word 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 provision to section 83(1) come into existence, an order of attachment may be made without waiting for thirty days to expire. Even is such a case the Magistrate has to record his reasons for arriving at the judicial satisfaction that such conditions as mentioned in the proviso to have come into existence.[27]
IV. CLAIMS AND OBJECTIONS TO THE ATTACHED PROPERTY
This section deals with the rights of the person other than proclaimed person in the property attached.Only the property of the absconder and not of some other person e.g father of the absconder would be attached under section 83 CrPC.[28] In case of non-conformance with section 82 which must be regarded as procedure established by law, the order which follows, including an order under the present section becomes illegal.[29]
A civil suit filed by the legal representative of a deceased, who was arrested, convicted but acquitted in appeal, is not maintainable. The remedy of a person, whose property is attached, lies in filing claim under the code and not in instituting suit against the attachment. When remedy is provided in particular act and it shows that the jurisdiction of civil court impliedly barred, the civil court shall have no jurisdiction to try any suit in connection with that matter.[30]
The words to establish the right which he claims in respect of the property in dispute in sub-s (4) cover a case where money is claimed as value of the property seized by Criminal Court.[31] Where the wife objector claimed the attached property as her own given to her in Mehar, but evidence didn’t show that after alleged oral gift, possession of the property was given to her, her objection was rejected.[32] The right of theperson to institute a suit in the civil court is not barred under this section.[33] Application by third party after actual release of the property from attachment under Section 84 is not maintainable. He can file civil suit for the purpose.[34]
In case, where property of the absconderis attached the third-party claimant may prefer claim under section 84 CrPC, the said remedy of preferring claim is not exclusive, civil suit by such a third party is not barred.[35]
Further, Claims and objections with regard attached property can be preferred only so long as that property continues to remain under attachment.[36] It means once the attached property disposed of then, there cannot be any objection and claim regard to that property.
An order passed by the court under section 84 CrPC., in so far as it relates to the third-party rights of the claimant, is only an interlocutory order and not a final order. Remedy against the said order is by way of a civil suit and not appeal.[37] The power under Section 482 is not be resorted to if there is specific provision in the code for the redress of grievances of the aggrieved party.[38]
Whether the wife and minor children of a person declared absconder under Section 82, can object to the attachment and sale of the property belonging to the absconder in proceedings under section83 and section 84, on the ground that they have a right to be maintained by the absconder in that case it was held that a husband’s obligation to maintain his wife is a personal obligation. The husband is bound to maintain his wife even though he has not got any property. Husband’s obligation to maintain his wife is independent of any property owned by him. Likewise, it is also the personal obligation of a father to maintain his minor children irrespective of the property owned by him. The petitioner and her children, Therefore, cannot be said to have an interest in the property sought to be sold in proceedings under section 83, in regard to their claim of maintenance. That being so, reliance sought to be placed by the learned counsel for the petitioner on section 28 of Hindu Adoptions and Maintenance Act, is misconceived.
- CONSTITUTIONAL VALIDITY OF ATTACHMENT OF PROPERTY
The Indian Constitution does not recognize property right as fundamental right. In the year 1978, the 44th amendment eliminated the right to acquire, hold and dispose of property as a fundamental right. After 1978, in the area of property relations, there are only four constitutional provisions that have been left viz., Articles 31A, 31B, 31C and 300A.
Article 300A does confer some semblance of protection of private property but this constitutional provision does not enjoy the status of a fundamental right. In another part of the constitution, Article 300A was inserted to affirm that no person shall be deprived of his property save by authority of law. The result is that the right to property as fundamental right is now substituted as a statutory right. The amendment expanded the power of the state to appropriate the property for social welfare purposes. In other words, the amendment bestowed upon the Indian Socialist state a license to indulge in using property for social purposes.
Article 300A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by parliament or state legislature, a rule or a statutory order having force of law. It is inherent in very sovereign state by exercising its power of eminent domain to expropriate private property without owner’s consent.[39]
Deprivation can only be done by the authority of law. Thus, a law will be necessary to deprive a person from his property. It limits the unruly power of the state. There has to be no deprivation without sanction of law. Therefore, in case of Attachment of property if follow all the provision regarding this provided in the code then it is said that the right to property of person whose property has been attached is not infringed. The attachment of property has been done in accordance of the code. Contrary to this situation can be infringement of the right conferred under Article 300A of the Constitution of India.
- RELEASE SALE AND RESTORATION OF THE ATTACHED PROPERTY
If the proclaimed person appears within the time specified in the proclamation, his property is released. If he does not do so within time, then his property will be at the disposal of the State Government.A bare reading of section 85 sub-section (3) of enough to hold that the onus of proving that the accused did not abscond for the purpose of avoiding execution of the warrant of arrest and that he had no notice of the proclamation issued, lies on the proclaimed offender, and rightly so, as these clearly are matters within the knowledge of the absconding accused.
The expression shall be at the disposal at the government is also used in the section 458. It means that the property passes under the absolute control of state government, to dispose of, or deal with it in whatever manner might seem most appropriate and convenient according to this provision.[40]The words ‘at the disposal of the State Government’ imply from the moment the absconding accused fails to appear or from the date of attachment and held that the property would be at the disposal of the Government only from the date of attachment and not from the date of the accused absconded.[41]
The property, unless it is perishable, is to remain under attachment for 6 months. At the end of the period, the property is to be sold, and the sale proceeds to wait for two years. If within two years the person satisfies the court as to the reason for his absence he can recover money; otherwise it stands forfeited to the government.[42] But a person having a claim to such property can enforce it by an independent action in a Civil Court so long as the property is not sold and remains in hands of Government.[43]
Subsection (3) prescribes a remedy where there is good and legal publication, but offers no facility for the contesting of the legality of the proclamation.[44] It contemplates and requires proof that the offender did not abscond or conceal himself for the purpose of avoiding arrest and that he had no such notice of the proclamation as to enable him to attend within the time specified. The proof that the accused person has not absconded should be offered or given within 2 years of the date of the attachment. It is not enough to show that within that period the accused person appeared voluntarily or was apprehended or brought before the court.[45] Where property of an absconder entitled to maintenance from him cannot apply for the release of the property.[46]A wife who is entitled to maintenance from absconder whose property has been attached, cannot apply for release of property (section 28 of the Hindu Adoptions and Maintenance Act,1956).
No provision in the code bars the jurisdiction of a civil court trying and adjudicating upon claim of an heir of a deceased absconder for restoration of the property in which the title originally vested in the absconder and at the time of suit vests in his heir and if the property is still held by the government.[47]
Appeals to the rejection to restoration of the attached Property
The intention for attachment of property under Section 83 of Code, was to compel absconding accused or person concealing himself from being arrested in execution of warrant to appear before Court.
The Property attached under section 83 of Code, vests with Government from date of attachment. If period provided under section 83 of Code, stands over, absconding accused would not be entitled to file application for getting property released, under section 85(3) of Code.
According to Section86 of the code 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.Any person whose application for the delivery of property or the proceeds of the sale thereof has been rejected by any Court may appeal to the Court to which appeals ordinarily lie from the sentences of the former Court. The provision is there to safeguard the interest of the person to whom the property belongs. This is a way to safeguard the right to property of a person.
- CONCLUSIONS AND SUGGESTIONS
Attachment of property can be said to be a last resort for the court to compel the accused to appear before the court of law. Appearance of the accused is required in carrying on the proceedings of the court. Trial mandates both parties to be present before the court. When in order to evade the process of law a person is hiding from his place of residence, he is said to ‘abscond’. However, an army personnel who is in active service and in operational area cannot be said that he is avoiding the service, and as such he cannot be declared a proclaimed offender.After proclamation, both movable and immovable property of the proclaimed person can be attached. If others property has been attached then, they can claim it and property shall be restored to them, if the claim stands.
The stringent provision under section 82 would exert considerable pressure on accused and would impel him to appear before the court as the property is also at the disposal of the government after the attachment. Army officers have been given exemption under the code.
If the proclaimed person appears within prescribed period of time in proclamation then the attached property can be released. However, If the absconder appears or is apprehended and brought before the Court within two years from the date of the attachment of his property and satisfies the Court (i) that he did not abscond or conceal himself for the purpose of evading execution of the warrant, and (ii) that he had no such notice of the proclamation as could enable him to attendwithin the specified time, he can get the property back or its net proceeds if it has been sold.
The order for attachment of property infringes the right conferred by Article 300A of the Constitution of India. There has to be no deprivation without sanction of law. Therefore, in case of attachment of property if follow all the provision regarding this provided in the code then it is said that the right to property of person whose property has been attached is not infringed. The attachment of property has been done in accordance of the code. Contrary to this situation can be infringement of the right conferred under Article 300A of the Constitution of India.
Sections 81, 82, 83 and 84 of new Code provide for the attachment and sale of the property of any accused person or witness whose presence is required by a Criminal Court as a last remedy for compelling is attendance. The procedure laid down must be strictly followed, otherwise the attachment and subsequent sale will be liable to be set aside. The proper forms for the proclamation, attachment etc., to be used in such proceedings is given in the code.
Any person whose application for the delivery of property or the proceeds of the sale thereof has been rejected by any Court may appeal to the Court to which appeals ordinarily lie from the sentences of the former Court. The provision is there to safeguard the interest of the person to whom the property belongs. This is a way to safeguard the right to property of a person.
[1]P. K Gupta v. State, 1973 CrLJ 1368(Cal).
[2]Loknath Singh v. The State of Bihar, 2003 CrLJ 1388(1389).
[3]Ruchi Goyal v. The State, 2003 CrLJ NOC256.
[4]Ballav Narayan Lenka v. State of Orissa, 2005 CrLJ 3365(Ori).
[5]Official Liquidator, Allahabad HC v. Vinay Bhagla, 2004 CrLJ 3529(35360)( All).
[6]K.T.M.S Abdul Cader v. Union of India, 1977 CrLJ 1708, 1722(Madras-FB).
[7]Vinod Kumar Khannav. State, 1988(2) Crimes 685, 687, (Del).
[8]Nirmla Devi v. State of HP, 2003CrLJ 3499(3500).
[9]Kartarey v. State of U.P.,(1976)I SCC172.
[10]Srivastav Ayengar v State, (1881) 4 Mad 393, 397.
[11]Geetha Ramchandran v. S. Ravichandran, 2003(2) Crimes 249(251)(Mad).
[12]Ramjeet v. State of U.P., 1991(3) Crimes 591, 521(All-DB).
[13]EswaramurthiGoundan, (1994) 71 IA 83, 92.
[14]Main Jan v. Abdul, (1905) 27 All 572.
[15]SavitabenGovindbhai Patel v. State of Gujrat, 2004 CrLJ 3651(3653)(Guj).
[16]Sunil Kumar v. State (2001) 93 DLT 804.
[17]George v. Joseph,(1953) Tra 607.
[18]Munukutla Satya Sarma v. State of Andhra Pradesh, 2000 CrLJ 763 (AP).
[19]V.G Peterson v. Forbes, AIR 1963 SC 692.
[20]Dayanand Kalu v. Haryana, AIR 1976 Punj 190.
[21]PuneshwarPrashad Singh v. State of Jharkhand, 2004 CrLJ 4493(4494)(Jhar).
[22]Ratish Rai v. Mohesh Singh, 1985 CrLJ 94(Gau).
[23]Ruchi Goyal v. The State, 2003 CrLJ NOC256.
[24]Devendra Singh Negi v. State of U.P, 1994 CrLJ 1783(1788,1789).
[25]Ram Pyare Lal v. Omprakash1977 CrLJ 1984, 1987(Del-DB).
[26]DinabadhuTaulakdar v. Santosh Kumar Himatshingka, 1987(2) Crimes 113, 120 (Gau).
[27]Devendra Singh v State of U.P., 1994 CrLJ 1783 (1788).
[28]PuneshwarPrashad Singh v. State of Jharkhand, 2004 CrLJ 4493(4494)(Jhar).
[29]P. K. Gupta v. state, 1973 CrLJ 1368(Cal).
[30]Punjab State v. DayaAnanad, AIR 1974 P&H 108.
[31]Jamshed Bute, (1956) Nag 866.
[32]Mohammad Zarif v. Union of India, (2002) 4 MPLJ 359.
[33]Secretary of state v. Ahilyabai, (1937) 40 Bom LR 422.
[34]Amina Ahmed Dossa v. State of Maharashtra, AIR 2001 SC 656.
[35]Deputy Supdt of Police, C.B.I., Ernakullam v. Nabeesa, 1997 CrLJ 843 (847)(Ker).
[36]Chandra Shekhar v. State, 1978 CrLJ 540(All).
[37]Amina Ahmed Dossa v. State of Orissa, AIR 2001 SC 656.
[38]Hasnain v. State of U.P., 1985 (1) Crimes 372, 375(All).
[39]Chaiman, Indore Vikas Pradhikaran v. Pure International Coke Chemicals Limited.(2007) 8 SCC 705.
[40]Golam Abed v. ToolseeramBera, (1883) 9 Cal 861, 863.
[41]Narayan KondajiTemkar v. Govind Krishna Abhyankar AIR 1929 Bom. 200.
[42]Dattaji v. Narayanrao,(1922)25 Bom LR 228.
[43]Secretary of State v. Ahilyabai, (1937)40 Bom LR 422.
[44]Abdullah v. Jitu, (1900)22 All 216,219.
[45]Nikanath, (1912) 15 Bom LR 175.
[46]N D Gaddi reddy v. State, 1979 CrLJ 1107 (Del).
[47]Dyanand v state AIR 1976 P&H190, 194 (DB).
