Awadheshwar Prasad Singh vs The State of Bihar

Shambhu Prasad Singh, J.—This application in revision has been filed against an order issuing warrant of arrest against the petitioner as well as proclamation u/s 87 of the Code of Criminal Procedure (hereinafter referred to as the Code) directing attachment of the properties of the petitioner u/s 88 of the same Code. It has been submitted that according to Section 87 of the Code of Criminal Procedure, 1898, which is applicable to this case, a proclamation u/s 87 of the Code could be issued only if the court had reasons to believe that any person against whom a warrant had been issued by it had absconded or was concealing himself so that such warrant could not be executed. It is implied from the language of the Section that no proclamation u/s 87 of the Code could be published unless a warrant of arrest had been issued earlier. In this case no warrant of arrest appears to have been issued earlier. Therefore, the order for publication of the proclamation was wrong. It is also manifest from Section 88 of the Code that unless a proclamation u/s 87 of the Code is issued, no order for attachment u/s 88 of the Code can be passed. The magistrate, therefore, was wrong in issuing proclamation u/s 87 of the Code and ordering for attachment of the properties of the petitioner u/s 88 of the Code.

It has been also submitted that an order for attachment u/s 88 of the Code cannot be passed unless the expiry of 30 days from the issue of the proclamation as mentioned in Section 87 of the Code and at any rate the orders issuing proclamation u/s 87 of the Code and for attachment of the properties of the proclaimed person could not be passed simultaneously. Reliance has been placed on a decision of a learned single Judge of the Calcutta High Court in (1) Pawan Kumar Gupta Vs. The State of West Bengal, and also o f a learned single Judge of this Court in an unreported decision in (2) Criminal Revision No. 1361 (Baikunth Jha and another V. The State of Bihar, Judgment dated the 17th of November, 1975). In my opinion, the view taken by the learned single Judge of Calcutta High Court, that orders under Sections 87 and 88 of the Code cannot be passed simultaneously, is not correct. So far the Judgment of the learned single Judge of this Court is concerned, he did not decide that point and merely made an observation which is obiter. It was not necessary to decide that matter on the facts of that case. On proper occasion the matter requires reconsideration. As it is not necessary to decide that question in this case either, I do not consider it necessary to refer it to a larger Bench for decision of that question. In the result the application is allowed and that part of the order by which the magistrate has directed for issuance of proclamation u/s 87 of the Code and for attachment of the properties of the petitioner, is set aside. The order, however, for issuing warrant of arrest against the petitioner shall remain as it is.