Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Proclamation and Attachment Sections 84 to 89
Proclamation and Attachment under the BNSS, 2023: Sections 84 to 89, Proclaimed Person and Proclaimed Offender, Attachment of Property and Restoration
When a summons has failed and a warrant cannot be executed because the person has gone into hiding, the Bharatiya Nagarik Suraksha Sanhita, 2023 provides two further steps. The first is publication: a proclamation requiring the person to appear, published so that he and those around him know of it. The second is pressure on his property: attachment, and in default of appearance, forfeiture. Neither is a punishment. Both are means of compelling appearance, and both cease to operate the moment he appears.
The chapter also contains one of the distinctions most often confused in criminal practice, between a proclaimed person and a proclaimed offender. Every proclaimed offender is a proclaimed person; the converse is not true, and the difference carries substantial consequences for bail, for arrest by a private person, for handcuffing and for trial in absentia.
Figure 1: The escalation ladder, from summons to trial in absentia
1. Proclamation for a Person Absconding: Section 84
Section 84, BNSS 2023 (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 shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy 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 it 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. |
1.1 The conditions
- A warrant must already have been issued. The section operates on “any person against whom a warrant has been issued by it”. A proclamation issued without a warrant having been issued is bad, and the point is a substantial one, not a technicality: the proclamation presupposes that the less coercive process has already failed.
- The court must have reason to believe that he has absconded or is concealing himself. The belief may be formed with or without taking evidence, but it must be a belief on material, and the material should appear on the record. A report that the warrant was returned unexecuted, without more, is not by itself evidence of absconding.
- The warrant must be incapable of execution for that reason. The words are “so that such warrant cannot be executed”. Where the warrant has not been executed for some other reason, the section is not engaged.
- Thirty clear days. The time specified for appearance must be not less than thirty days from the date of publication. A proclamation allowing a shorter period is defective, and the defect is not a mere irregularity, because the whole of the consequence turns on a failure to appear within the period.
1.2 Publication
The mode of publication in sub-section (2)(i) is mandatory and cumulative: public reading in a conspicuous place of the town or village, affixation to a conspicuous part of the house or homestead or of the town or village, and affixation at the court-house. Publication in a newspaper under clause (ii) is discretionary and additional, and the Sanhita has retained it in that character.
Sub-section (3) makes a written statement by the court that the proclamation was duly published on a specified day conclusive evidence of compliance and of the date. The provision exists because the consequences of a proclamation depend on the date of publication and on the expiry of thirty days from it, and those facts must be capable of being established without a separate inquiry. But the conclusive effect attaches only to a statement about publication in the manner specified in clause (i); a statement about a newspaper publication has no such effect.
2. Proclaimed Person and Proclaimed Offender
Sections 84(4) and 84(5), BNSS 2023 (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence which is 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). |
⚠ The change the Sanhita made, and why it matters Section 82(4) of the Code of Criminal Procedure permitted a court to pronounce a person a proclaimed offender only where the proclamation was in respect of an offence under one of a closed list of sections of the Indian Penal Code, principally the more serious offences against the body and against property. Section 84(4) of the Sanhita replaces that list with a punishment threshold: any offence punishable with imprisonment of ten years or more, imprisonment for life, or death, under the Bharatiya Nyaya Sanhita or under any other law. The category is therefore both wider and easier to apply, and it now extends to offences under special statutes, which the CrPC list did not. Since a declaration as a proclaimed offender carries consequences under sections 40, 43(3), 75 and 356, and bears on bail, the widening is of real practical significance. |
Proclaimed person | Proclaimed offender | |
|---|---|---|
How he becomes one | A proclamation is published against him under section 84(1) | A proclamation has been published and he has failed to appear, and the offence is punishable with ten years or more, life or death, and the court has, after such inquiry as it thinks fit, declared him to be one: section 84(4) |
Any offence? | Yes. A proclamation may issue in respect of any offence for which a warrant has been issued | No. Only the offences within the punishment threshold |
Is a declaration required | No. The proclamation itself makes him a proclaimed person | Yes. A separate declaration, after inquiry, published in the same manner as the proclamation |
Attachment of property | Available under section 85 at any time after the issue of the proclamation | Available on the same footing |
Arrest by a private person | Not on that footing alone | Section 40: a private person may arrest a proclaimed offender |
Warrant to any person | Not on that footing alone | Section 75: a warrant may be directed to any person for the arrest of a proclaimed offender |
Handcuffs | Not on that footing alone | Not a listed category as such under section 43(3), though a person who escaped from custody is |
Trial in absentia | Not available | Section 356: available against a proclaimed offender who has absconded to evade trial |
Bail | A relevant circumstance | Anticipatory bail is ordinarily not to be granted to a person declared an absconder or proclaimed offender |
📖 Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730 Facts: The appellant, accused in a case of dowry death, had absconded, and the court had initiated proceedings declaring him an absconder. He applied for and obtained anticipatory bail from the High Court without disclosing that position. The State appealed against the grant. Held: The Supreme Court set aside the order. It held that normally, when the accused is absconding and is declared a proclaimed offender, there is no question of granting anticipatory bail. The very foundation of the relief is that the applicant is apprehending arrest and is willing to submit to the process of law; a person who has evaded the process of the court, and against whom proceedings for proclamation have been taken, stands in a different position. The Court held that the High Court had failed to consider that the appellant had been declared an absconder and that the allegations were serious, and that anticipatory bail should not have been granted. Ratio: A person who has been proclaimed, or against whom proclamation proceedings have been taken for absconding, is not ordinarily entitled to anticipatory bail. Evading the process of the court disentitles him to a discretionary relief that presupposes submission to it. |
3. Attachment of Property: Section 85
Figure 2: How attachment is made, and how it is undone
3.1 When attachment may be ordered
The court may 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. The ordinary rule is therefore that the proclamation comes first and the attachment follows. The section contains an exception permitting attachment simultaneously with the issue of the proclamation where the court is satisfied, by affidavit or otherwise, that the person is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local jurisdiction of the court.
The exception is directed at the obvious defeat of the section. A person who knows a proclamation is coming may dispose of his property in the thirty days before the attachment could otherwise be ordered, and the power to attach simultaneously exists to prevent that. It is exercised on the satisfaction of the court on affidavit or otherwise, and the satisfaction should appear on the record.
3.2 How attachment is made
Kind of property | Mode of attachment |
|---|---|
Movable | By seizure; or by the appointment of a receiver; or by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf; or by all or any two of those methods |
Immovable | Through the Collector of the district in which the land is situate, by taking possession; or by the appointment of a receiver; or by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to anyone on his behalf; or by all or any two of those methods |
Property outside the district | The order authorising attachment shall not be executed until it is endorsed by the District Magistrate within whose district the property is situate |
Livestock or perishable property | The Court may, if it thinks expedient, order immediate sale, and the proceeds are dealt with as the Court directs |
Property abroad | Under section 86, which is new, the Court may make a written request to a court or authority in a contracting State for the identification, attachment and forfeiture of property belonging to the proclaimed person situated in that State |
Section 86 has no counterpart in the Code of Criminal Procedure. It works through the reciprocal arrangements in Chapter VIII and extends the attachment machinery beyond the territory in which an Indian court can act directly. Its practical significance is in cases where the absconder has moved assets out of the country, which the earlier law could reach only through the special statutes.
3.3 Whose property
Only property belonging to the proclaimed person may be attached. The section is not a power to attach property in his possession, property of his household, or property of a person connected with him. That limitation is easy to state and is frequently disregarded in practice, and it is the subject of the leading authority.
📖 Vimalben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649 Facts: In proceedings arising out of a matrimonial dispute, a warrant had been issued against the husband, who was absconding. The property attached in the proceedings that followed was a flat belonging to his mother, who was not an accused and against whom no warrant or proclamation had been issued. She challenged the attachment. Held: The Supreme Court held the attachment unsustainable. The power to attach under the section extends only to property belonging to the person against whom the proclamation has been issued. The property of the mother-in-law was her own, and it could not be attached for the default of her son; a person’s property cannot be proceeded against for the acts or omissions of another. The Court observed that the provisions on proclamation and attachment must be strictly construed, being coercive in character, and that a court exercising the power must satisfy itself of the ownership of the property before ordering attachment. Ratio: Attachment reaches only property belonging to the proclaimed person. Property of a relative or a third party is not liable, and an order attaching it is without jurisdiction. |
4. Claims, Objections and Restoration
4.1 Claims and objections: section 87
If any claim is preferred to, or any objection made to the attachment of, any property attached under section 85, 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 the property and that such interest is not liable to attachment, the claim or objection shall be inquired into and may be allowed wholly or in part. The claim or objection may be preferred to the Court by which the attachment was ordered, or, where it was made through a District Magistrate or Collector, to that officer, who forwards it to the Court.
A person whose claim is disallowed in whole or in part may, within a period of one year from the date of the order, institute a suit to establish the right which he claims in respect of the property; but subject to the result of such suit, if any, the order shall be conclusive.
4.2 Release, sale and restoration: section 88
Situation | Consequence |
|---|---|
The proclaimed person appears within the time specified in the proclamation | The Court shall make an order releasing the property from the attachment |
He does not appear within the time specified | The property under attachment shall be at the disposal of the State Government; but it shall not be sold until the expiry of six months from the date of the attachment and until any claim or objection under section 87 has been disposed of, 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 order an immediate sale |
He appears within two years from the date of the attachment, and proves to the satisfaction of the 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 | The property, or if it has been sold the net proceeds of the sale, or if part only was sold the net proceeds and the residue of the property, shall, after satisfying all costs incurred in consequence of the attachment, be delivered to him |
The two-year restoration provision is the clearest indication of the character of the whole machinery. Attachment is not a forfeiture for the offence charged and is not a punishment for it. It is a means of compelling appearance, and it is undone even after sale where the person shows that he was not in fact absconding and had no real notice of the proclamation. Both conditions must be satisfied, and the burden of satisfying the court is on him.
4.3 Appeal: section 89
Any person referred to in section 88(3) 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. The appeal lies only against a refusal to restore; there is no appeal under this section against the order of attachment itself, for which the remedy is a claim under section 87 or the revisional and inherent jurisdictions.
5. Consequences of Proclamation
Provision | Consequence | Applies to |
|---|---|---|
Section 85 | Attachment of property, movable and immovable, and sale in default of appearance | A proclaimed person |
Section 86 | Request to a contracting State for identification, attachment and forfeiture of property abroad | A proclaimed person |
Section 35(1)(d) | Any police officer may arrest without warrant a person who has been proclaimed an offender | A proclaimed offender |
Section 40 | A private person may arrest, or cause to be arrested, any proclaimed offender, and must hand him over within six hours | A proclaimed offender |
Section 75 | A warrant may be directed to any person within the local jurisdiction for the arrest of a proclaimed offender | A proclaimed offender |
Section 356 | Inquiry, trial or judgment in absentia, where he has absconded to evade trial and there is no immediate prospect of arresting him | A proclaimed offender |
Bail | Anticipatory bail is ordinarily not granted to a person who has absconded and been proclaimed | Both, with greater force against a proclaimed offender |
The Bharatiya Nyaya Sanhita | Failure to appear in response to a proclamation is itself an offence in the circumstances the penal statute specifies | A proclaimed person |
⚠ Three errors worth avoiding A proclamation without a warrant is bad. Section 84 operates only against a person “against whom a warrant has been issued”. The sequence summons, warrant, proclamation, attachment is not a matter of convention; each step is a statutory precondition of the next. A declaration as a proclaimed offender is a separate judicial act. It requires the offence to fall within the ten-year threshold, a failure to appear, an inquiry, and a declaration published in the same manner as the proclamation. A person is not a proclaimed offender merely because a proclamation was issued against him. Attachment reaches only his own property. The property of a parent, a spouse or any third party is not liable merely because he lives there or is connected with the owner, and an order attaching it is without jurisdiction. |
6. Key Takeaways
The position stated shortly 1. Section 84 permits a court to publish a proclamation where it has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed. 2. The proclamation must require him to appear at a specified place and time not less than thirty days from the date of publication. 3. Publication under sub-section (2)(i) is mandatory and cumulative: public reading, affixation at the house or in the town or village, and affixation at the court-house. Newspaper publication under clause (ii) is discretionary and additional. 4. A written statement by the court that the proclamation was duly published on a specified day in the manner in clause (i) is conclusive evidence of compliance and of the date. 5. Under section 84(4) a person may be declared a proclaimed offender where the offence is punishable with ten years or more, imprisonment for life or death, he fails to appear, and the court so declares after inquiry. The CrPC used a closed list of IPC sections; the Sanhita uses a punishment threshold and extends to any law. 6. Section 85 permits attachment at any time after the issue of the proclamation, and simultaneously where the court is satisfied that the person is about to dispose of or remove his property. 7. Only property belonging to the proclaimed person may be attached; property of a relative or third party is not liable: Vimalben Ajitbhai Patel. 8. Section 86 is new and permits a request to a contracting State for the identification, attachment and forfeiture of property situated abroad. 9. Section 87 permits a claim or objection by a person other than the proclaimed person within six months, with a suit to establish the right within one year of an adverse order. 10. Section 88: the property is released if he appears within the time specified; it is at the disposal of the State if he does not, but is not sold for six months; and it is restored if he appears within two years and shows that he did not abscond and had no notice. Attachment is a means of compelling appearance, not a punishment. |
7. Frequently Asked Questions
What is a proclamation under section 84?
A written proclamation published by a court where it has reason to believe that a person against whom a warrant has been issued has absconded or is concealing himself so that the warrant cannot be executed, requiring him to appear at a specified place and time not less than thirty days from the date of publication.
What is the difference between a proclaimed person and a proclaimed offender?
A proclaimed person is one against whom a proclamation has been published under section 84(1). A proclaimed offender is one who, the offence being punishable with ten years or more, imprisonment for life or death, has failed to appear and has been declared such by the court after inquiry under section 84(4). Every proclaimed offender is a proclaimed person; the converse is not true.
Can a proclamation be issued without a warrant?
No. Section 84 operates only against a person against whom a warrant has already been issued, and the proclamation presupposes that the warrant cannot be executed because he has absconded or is concealing himself.
Can the property of a relative be attached?
No. Section 85 permits the attachment only of property belonging to the proclaimed person. The property of a parent, spouse or any third party is not liable merely because he lives there or is connected with the owner, and an order attaching it is without jurisdiction: Vimalben Ajitbhai Patel.
Can attached property be recovered after it has been sold?
Yes, in the circumstances section 88(3) specifies. If the person appears within two years from the date of the attachment and satisfies the court that he did not abscond or conceal himself to avoid execution of the warrant and had no such notice of the proclamation as to enable him to attend, the property, or the net proceeds of its sale, is delivered to him after satisfying the costs of the attachment.
Is anticipatory bail available to a proclaimed offender?
Ordinarily not. The Supreme Court held in Lavesh v. State that where an accused is absconding and has been declared a proclaimed offender, there is normally no question of granting anticipatory bail, since the relief presupposes a willingness to submit to the process of the court.
Related Topics
- Warrants under the BNSS, 2023: Sections 72 to 83
- Summons under the BNSS, 2023: Sections 63 to 71
- Trial in Absentia of a Proclaimed Offender: Section 356, BNSS
- Escape from Custody and Retaking under the BNSS, 2023
- Attachment of the Proceeds of Crime: Section 107, BNSS
- Reciprocal Arrangements for Assistance: Chapter VIII, BNSS