Under Cr.P.C if a person does not appear before police or any criminal court, certain methods are provided for his appearance:
If there is any application or FIR has been registered against any person and the accused does not join investigation, the police has the following powers.
- Issuance of notice normally called as hukam namatalbi, After the issuance if he does not appear.
- Declare such person as absconder.
The court has following methods
- Warrants of arrests
- Warrants in lieu of summons
- Declare such person as absconder.
Two declare any person an absconder there are two methods to be adopted:
- Proclamation of abscondence u/s. 87 Cr.P.C
- Attachment of property U/S 87 Cr.P.C
Proclamation for person absconding:
Proclamation means to announce in the public or to declare anything in the public.
Term abscond has been used in S. 87, Cr.P.C in ordinary sense. It means to hide, withdraw or be concealed.
An absconder means a person who is intentionally evading and avoiding service of notice, summons or warrants issued to him and intentionally makes himself inaccessible to the process of law. [PLD 1978 SC 102].
Section 87 of the Code lays down that if any court has reason to believe that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrants cannot be executed, such court may publish a written proclamation requiring him to appear at a specified place and time before it.
U/s. 87 Cr.P.C when the court is satisfied that the person so required is.
- Warrants of arrest cannot be executed against him.
Then the court may pass an order:
- Publish a written proclamation
- Require him to appear
- Appear within 30 days of written proclamation.
This order will be containing following essentials
- Day, date, time and place of appearance
87 (2), Cr.P.C says:
- Proclamation to be published publicly
- Publicly read in surrounding village and town.
- Affixation of proclamation at some important places of his house.
- Affixation of proclamation at the concerned police station, premises of court or any important places like mosque patwar Khana.
“Not Less Than 30 days”
The proclamation issued under this section should fix a date not less than 30 days from the date of publication for appearance of absconder. Otherwise the proclamation is illegal [1969 Cr.L.J 826].
Before expiry of thirty days from date of proclamation, authority resuming property of accused and putting same to auction was illegal [1988 P.Cr.L J 1503].
It has been held that there are two kinds of abscondence;
(1). Abscondene having guilty conscious
(2). Abscondence of innocent persons in order to save themselves from the excesses of investigation agencies because of lack of confidence in such agencies or to avoid the ordeal of criminal trial and so on so forth, thus the cases of both the sets of accused persons are to be dealt with differently
There are two aspects of abscondence:
- Putting the prosecution in disadvantageous position during the course of investigation and trial.
- Creating a corroborative and circumstantial evidence against himself.
In the first case though abscondence an accused person destroys, conceals or allows any valuable evidence to disappear such as recovery of weapons blood-stained clothes, discovery of dead body or place of incidence reducing the value of identification test and so on so forth and latter case by abscondence creates a corroborative and circumstantial evidence which can be used against him during trial, if an order under S. 87 (3), Cr.PC is passed by the court. Therefore, different yard stick, to be made to treat both the sets of accused parsons. If an accused person absconds through which valuable piece of evidence is lost or concealed or allowed to be destroyed then he is not entitled for any concession, but if an innocent person became fugitive from law then this case fall within the provision of such section (2) of section 497 Cr. P.C
Statement in Writing By Court Sub. S. 3.
It is only where a statement in writing is recorded under sub s. (3) that it will be conclusively evidence as to the fulfillment of the requirement of the section. Where there is no such statement on record and there is nothing to show that the provisions of sub section (2) have been complied with, the proclamation cannot be considered to be in accordance with law.
When the proclamation does not comply with the requirements of the section proceedings can be set aside in revision but High Court will not entertain an application on behalf of an accused person against whom a proclamation has been issued until he has surrendered. Even after surrendering the proper procedure for the accused is to apply to the magistrate himself in the first instance and a revision will lie from the magistrate decision on such application.
Attachment of Property (S. 88):
After the issuance of proclamation and expiration of 30 days the court shall further pass an order for attachment of property both movable/immovable belonging to the absconder.
The object of this section is to compel an accused person to appear in obedience to a summons or warrant issued by criminal court. [AIR 1937 pat 642].
When Attachment May Be Ordered:
Before an order for attachment can be passed under this section, it is necessary that a warrant for arrests must have been issued and it must be established that the accused has absconded or concealed himself for the purpose of evading arrest. The court can issue a proclamation against an absconding offender under S. 87 and Simultaneously order the attachment of his property under this section, and it is not necessary for it to wait the time fixed in the process u/s 87 has elapsed.
Kinds of Property Attached:
The court can attached both movable and immovable property at the same time. Where the property is subject to a mortgage the attachment will operate only in respect of the equity of redemption.
Receiver of attached property:
A receiver of attached property may be appointed by the court by making the attachment. But notwithstanding such appointment the property is deemed to be in the possession of the court and the court appointing the receiver can also discharge him if necessary, and releases the property from attachment.
Forfeiture of attached property:
If the proclaimed person appears or arrested within the time specified in the proclamation the attachment will cease.
Where proclaimed offender does not appear the property will be at disposal of provincial government.
Claims and Objections:
It is obligatory on the court to inquire into the matter of some property which is to be attached or in attached and the objection is preferred in terms of S. 88. Such objection would essentially be pact to the judicial inquiry. Objection against attached property can be
- Either allowed
- Or disallowed.
In case the objection is disallowed then such person can file a civil suit within one year for establishing his right.
Limitation for Claim:
Under subsection (6A)and (6C) the court would be entitled to hold inquiry if an objection is raised on the attachment of property attached u/sub S. (6C) within 6 months from the date of attachment. Where the petitioner does not claim the property on behalf of absconder but claim the property as his own, the procedure for such claim is provided in sub-section (6-A) which prescribes a period of six month for any objection regards the attachment of any property on the ground that the objector has an interest in such property and that such interest was not liable to attachment u/s. 88. The further provisions as regards such claim is contained in (sub-section (6-0)) which provides that in case the claim or objection is disallowed in whole or in part by an order u/sub-S (6-A) the petitioner may within a period of one year from the date of such order institute a suit to establish the right which the claims in respect of the property in dispute and subject to the result of the suit order is conclusive.
Sale of attached property:
If the proclamation offender does not appear with in the specified time period, the property attached be at disposal of provincial Govt. but not liable to be sold until expiration of six months from the date of attachment or until the claim or objection preferred u/sub section 6-A has been disposed of. Sale proceeding will be Conducted Under Land Revenue: Act (S.90).
Declaration As Proclaimed Offender:
- After the attachment is complete the person shall be formally declared as an absconder a separate report (Challan) U/s. 512, Cr.P.C shall be submitted before the magistrate
- After the proclamation offender is declared his name will also be written in separate register in the police station along with his photo at the main door of police station concerned.
- After FIR was registered then in the report i.e., challan u/s 173 Cr.P.C his name will be written with red ink in column number 2 of challan.
Restoration of attached property:
Restoration of attached property can be secured only u/s 89 of Cr.P.C [PLD 1962 Dacca 245].