Legal Processes Unveiled

Legal Desk

The Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as “the BNSS”), represents a significant advancement in the modernization and refinement of criminal procedural law in India. This comprehensive legislative framework is designed to overhaul and streamline various aspects of criminal justice, making the system more efficient and equitable. One of its primary objectives is to address the challenges associated with absconding offenders by establishing clear and effective procedures for their management. The BNSS includes detailed guidelines for issuing proclamations to declare individuals as proclaimed offenders and for the attachment of their properties, ensuring that the legal process remains robust even in the absence of the accused. Moreover, the BNSS emphasizes the principles of transparency and accountability, aiming to enhance public trust in the judicial system. By setting forth specific protocols for these and related judicial processes, the BNSS seeks to ensure that justice is not only delivered but is also perceived to be delivered fairly and effectively, thus fostering a more just and orderly criminal justice system.

What is a proclamation?

A proclamation is a formal declaration issued by a court to address two key situations: first, when an accused person is absconding and cannot be located, a proclamation is issued to declare them a proclaimed offender. Second, it can be used to announce the attachment of property when ordered by the court. Proclamations aim to aid in locating the accused or to notify the public and interested parties about legal proceedings or property attachments.

Under what circumstances can a court issue a proclamation for a person who is absconding?

A court can issue a proclamation if it has reason to believe, either with or without evidence, that a person against whom a warrant has been issued has absconded or is hiding, making the warrant unenforceable. The court can then publish a written proclamation requiring the person to appear at a specified place and time, which must be at least 30 days from the date of the proclamation’s publication. The primary meaning of the word abscond is to hide and when in order to evade the process of law a person is hiding from (or even in) his place of residence, he is said to abscond as was held in Kartarey v. State of U.P., (1976) 1 SCC 172.

How should the proclamation be published?

The proclamation must be published in several ways:

• It should be read publicly in a conspicuous place in the town or village where the person ordinarily resides.
• It must be affixed to a noticeable part of the person’s house or homestead or a conspicuous place in the town or village.
• A copy should be affixed to a conspicuous part of the courthouse. Additionally, the court may order the proclamation to be published in a daily newspaper circulating in the area where the person ordinarily resides.

What is the significance of a court statement regarding the proclamation’s publication?

A written statement by the court that the proclamation was duly published on a specified day and in the manner specified is considered conclusive evidence that the publication requirements have been met.

What are the consequences if a person fails to appear after a proclamation is issued for a serious offence?

If the proclaimed individual, who is accused of an offence punishable by 10 years or more of imprisonment, life imprisonment, or death, fails to appear, the court may declare them a proclaimed offender after conducting an inquiry.

What actions can the court take regarding the property of a proclaimed person?

The court can order the attachment of the proclaimed person’s property, whether movable or immovable, at any time after issuing the proclamation, for recorded reasons. If the court is convinced that the person is about to dispose of or remove the property, it can order the attachment simultaneously with the proclamation.

How is the order of attachment of property executed?

The court’s order authorizes the attachment of property within the district. For property outside the district, the order must be endorsed by the District Magistrate of the district where the property is located. Movable property attachment can be carried out by seizure, appointing a receiver, or prohibiting delivery to the proclaimed person. For immovable property, attachment may involve the Collector, taking possession, appointing a receiver, or prohibiting rent payment or property delivery to the proclaimed person.

How does the court handle perishable or live-stock property?

The court may order the immediate sale of perishable property or livestock, and the sale proceeds will be subject to the court’s order.

How does the court manage requests for international assistance in property attachment?

Upon a written request from a police officer not below the rank of Superintendent of Police or Commissioner of Police, the court can seek assistance from a foreign court or authority to identify, attach, and forfeit the property of a proclaimed person.

What process is followed if someone claims an interest in the attached property?

If a claim or objection is made within 6 months of the attachment by someone other than the proclaimed person, the court will investigate the claim. Claims can be filed in the issuing court or the Chief Judicial Magistrate’s court if the attachment was endorsed.

What recourse is available if a claim is rejected?

If a claim is rejected, the claimant can file a suit within 1 year to establish their rights over the disputed property. The court’s order stands until the suit’s resolution.

Can the proclaimed person reclaim their attached property?

If the proclaimed person appears within the specified time, the court will release the attached property. If they do not appear, the property is at the state government’s disposal but cannot be sold for 6 months unless it is perishable or beneficial for the owner. If the person proves they did not abscond to avoid the warrant within 2 years, the property or sale proceeds, minus costs, will be returned to them.

Is there an appeal process for refusal to restore property?

Yes, a person can appeal a court’s refusal to restore property or sale proceeds.

When can a court issue a warrant instead of a summons?

A court can issue a warrant instead of a summons if it believes the person has absconded or will not obey the summons or if the person fails to appear after being duly served.

What can the court do if a person appears after a summons or warrant?

The court can require the person to execute a bond or bail bond for their appearance in the current or another court for trial.

What happens if someone breaches their bond or bail bond?

If a person bound by a bond or bail bond fails to appear, the court can issue a warrant for their arrest.

Therefore, the BNSS represents a landmark evolution in India’s criminal procedural framework, bringing a modernized approach to handling absconding offenders and the management of their assets. One of its most notable features is the introduction of stringent processes for proclamations and property attachments. These measures are designed to address the significant challenge posed by offenders who attempt to evade justice through flight or concealment of assets. The BNSS outlines a detailed and systematic approach to the process of proclaiming individuals who are absconding. It sets forth clear guidelines for how such proclamations should be issued, including the necessary procedural steps and the role of law enforcement agencies. This rigorous approach aims to ensure that absconding offenders cannot easily slip through the cracks of the legal system, thus enhancing the overall integrity and accountability of criminal proceedings. In addition to its focus on absconding offenders, the BNSS also places a strong emphasis on the management and attachment of assets. The legislation establishes comprehensive procedures for the identification, attachment, and eventual disposal of assets belonging to individuals involved in criminal activities. This is a crucial development, as it addresses the need to prevent offenders from benefiting financially from their illicit activities and ensures that the proceeds of crime can be redirected towards compensating victims and supporting the justice system. As the BNSS is implemented across the country, it is anticipated to have a significant impact on the criminal justice landscape. Its introduction marks a forward-looking step in aligning India’s legal practices with contemporary standards of procedural fairness and effectiveness.

Muneeb Rashid Malik is an Advocate practicing before the Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble High Court of Jammu & Kashmir and Ladakh. He is the Legal Advisor to Kashmir Uzma. He tweets @muneebmalikrash.

The contents of this article are intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.