Introduction
The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, presents a robust legal framework for addressing criminal offenses, particularly those involving absconding individuals. One of its critical components is the process for proclaiming and attaching the property of an absconding person. This procedure ensures that individuals who evade the law cannot benefit from their assets while on the run. This blog will break down these procedures, providing actionable insights for understanding how these legal processes unfold.
Understanding the Concept of Proclamation and Attachment
Before diving into the legal procedures, it's crucial to grasp the terms involved:
Absconding Person: An individual who deliberately avoids legal proceedings or attempts to escape arrest, often making it impossible for authorities to serve a warrant.
Proclamation: A formal public announcement, issued by the court, directing the absconding person to appear before it.
Attachment: The legal act of seizing or securing property owned by an absconding person in order to prevent its disposal or removal.
The BNSS emphasizes that absconding persons are not only a hindrance to criminal investigations but can also destabilize the legal order. As such, the law provides stringent measures to address this challenge, ensuring that both the person and their assets can be appropriately dealt with under legal supervision.
Legal Framework Under BNSS
BNSS outlines several key sections that govern the process of proclaiming and attaching property of an absconding person:
Section 84: Proclamation for Person Absconding
This section gives the court the power to issue a proclamation when it believes an individual has absconded or is concealing themselves.
Section 85: Attachment of Property of Person Absconding
Allows the court to attach both movable and immovable property of an absconding person, even before the individual has been officially declared a proclaimed offender.
Section 86: Identification and Attachment of Property
This provides the court with the authority to request assistance from authorities in contracting states to identify and attach the property of a proclaimed person.
Section 87: Claims and Objections to Attachment
Outlines the process for third parties to challenge the attachment of property, particularly when they claim ownership or interest in the assets.
Section 88: Release, Sale, and Restoration of Attached Property
Discusses the conditions under which attached property can be released, sold, or returned to the rightful owner.
Section 89: Appeal Process
Provides the mechanism for appealing against the court’s decision on the attachment or restoration of property.
Step-by-Step Process for Proclaiming and Attaching Property
Issuance of Warrant
The process begins when a court has reason to believe that an individual has absconded. The court must issue a warrant for the person's arrest, and if the warrant is not executable, it can then proceed with issuing a proclamation.
Conditions for Issuing a Warrant:
The court must be satisfied that an individual is either hiding or avoiding arrest. Evidence may be presented to support this belief.
Proclamation for Person Absconding
Once the court deems it necessary, it will issue a proclamation.
Criteria for Issuing a Proclamation:
The court will state the time and place the absconding person is required to appear.
The proclamation must be published widely, including public readings in the town or village where the person resides and postings at prominent locations.
Methods of Publishing:
Public notices are affixed to the absconding person’s last known residence and other public places. The court can also order a newspaper publication to ensure broad dissemination.
Timeframe for Appearance:
The absconding person is given a minimum of 30 days to appear in court from the date of the proclamation.
Attachment of Property
If the absconding person does not appear within the specified time frame, the court may order the attachment of their property.
Types of Property:
Both movable (e.g., vehicles, jewelry) and immovable property (e.g., land, buildings) can be attached.
Methods of Attachment:
Seizure of property
Appointment of a receiver to manage the property
Prohibitory orders that prevent the transfer or delivery of property to the proclaimed person or their agents
Special Provisions for Perishable Property:
If the property is perishable, such as livestock or crops, the court may order an immediate sale, with proceeds held for further court orders
Identification and Attachment of Property in Contracting States
When the proclaimed person’s property is located outside the jurisdiction, the court may seek assistance from other courts or authorities in contracting states (states with legal agreements on such matters). Police officers, typically of higher ranks like the Superintendent of Police, may be involved in coordinating this effort.
Claims and Objections to Attachment
Third parties who claim ownership of the attached property can file claims or objections within six months of the attachment.
Legal Proceedings for Claims:
The court will investigate the claim and determine whether the property should be returned to the claimant. If disallowed, the claimant may appeal within one year.
Release, Sale, and Restoration of Attached Property
If the proclaimed person appears in court within the prescribed time, the court may release the attached property. However, if they fail to appear, the property remains under state control.
Conditions for Sale:
If the property is not claimed and is subject to decay or other considerations, it may be sold. The proceeds will be held until the court makes a final decision regarding the ownership or sale.
Restoration:
In the event of a successful claim, the property will be restored to its rightful owner.
Appeal Process
Persons aggrieved by the attachment order or the denial of property restoration have the right to appeal. The appeal process ensures that those wrongfully deprived of property can seek redress through higher courts.
Case Law on Proclamation and Attachment of Property
The legal framework for proclaiming and attaching property of absconding persons has been shaped by several landmark judgments. These cases not only reinforce the procedural aspects of this process but also emphasize the importance of ensuring justice while safeguarding individual rights.
In the Sunil Tyagi v. Govt. of NCT of Delhi (28 June 2021), the Supreme Court underscored the necessity for clear evidence before issuing proclamations for absconding persons. The Court held that proclamations should not be issued routinely but must be backed by sufficient grounds to believe that the individual is intentionally evading arrest. This ruling aligns with the provisions of Sections 82 and 83 of the CrPC, highlighting the need for due diligence.
Similarly, in the Dayanand Kalu v. State of Haryana (1976), the Supreme Court clarified that the purpose of attaching property is not punitive but to compel the absconding person’s appearance before the court. The Court emphasized that the attachment of property should serve as a means to an end—ensuring the accused returns to face justice, rather than as a punishment. This aligns with the broader aim of the criminal procedure, which is to maintain order and fairness.
In addition, the Delhi High Court issued significant guidelines in its order dated 31st July 2019, directing the Delhi Police and CBI to adopt measures to ensure the timely attachment of properties belonging to proclaimed offenders. It was highlighted that attachment should only follow after all reasonable efforts to arrest the absconder have been exhausted.This ruling emphasizes that the process of property attachment must be conducted with great care, ensuring that it is used as a tool for justice rather than as a simple administrative procedure.
Moreover, in Devendra Singh Negi v. State of U.P. (2013), the Court emphasized that property could not be attached before the completion of a 30-day period after the proclamation. This provision ensures that the accused has ample time to respond before their assets are seized.
The courts have consistently reinforced that the attachment of property should be approached cautiously, with each case considered on its own merits, to avoid undue hardship on innocent parties while holding absconding individuals accountable.
Conclusion
The process for proclaiming and attaching the property of an absconding person under the BNSS is both comprehensive and structured. By setting clear guidelines for publication, attachment, and restoration of property, the law ensures that justice is upheld while preventing individuals from evading legal consequences. Understanding these processes is vital for those involved in legal matters related to absconding persons, ensuring that they are equipped with the knowledge to navigate the complexities of the law effectively.
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