Haji Kala Khan vs State and ors.

Through the medium of this revision petition orders dated 01 061 088 and 13081 988 passed (in sessions Case No. 14/82) by the learned

Sessions Judge Rajouri have been assailed as being illegal and perverse.

The factual matrix of the case lies in a narrow compass and is to the effect that petitioneraccused alongwith coaccused have been facing trial in the

above stated case for the commission of the offences falling under sections 376/366, 149/368 and 354 R.P.C. It appears that accused had

absented and warrants of arrest was issued against him for securing the presence. In terms of the impugned order dated 01061988 the statement

of constable Mohd. Razak was recorded by the trial court, who was entrusted with the job of execution of the warrent. The said constable had

stated that the petitioner accused had absconded as he had gone to Saudi Arbia. He further had stated that the petitioner accused had been

intentionally avoiding the execution of the warrants and there were no prospects of his immediate arrest. On this showing, the learned trial Judge

was satisfied that petitioner accused had absconded and concealed himself in order to avoid the pending proceeding. Consequently, he was

declared as a proclaimed offender. Publication to that effect was issued in accordance with the law. After this, on 13081988, the learned trial

Judge passed the order dated 13081988 whereby property of the petitioner accused consisting of Khasra nos. 345,613, 1614 to the extent of his

1/3rd share and a house build over Khasra no. 614 was attached. This was done by invoking the provision of Section 88 of the Code of Criminal

Procedure. The concerned collector was directed to attach the said property and place the same on superdnama of somebody. These orders

passed by the learned trial Judge have been assailed on the grounds that no warrant of arrest issued against him and under these circumstances

there could be no basis for presuming or holding that he was avoiding the execution of the service of warrant issued against him. The learned

Sessions Judge had passed these orders without proper application of mind and thus the tendentious effect of carrying miscarriage of justice.

It was also averred that before leaving for Saudi Arbia, the petitioner accused had filed an application before the trial court giving information for

his temporary absence from the country.

Heard Mr. S.A. Salaria

Mr. Salaria during his arguments has reiterated the grounds taken in the revision petition. As well as he has cited the case of N.M.V. Vellayappa

Chettiar V/s Alagappa Chettiar AIR(29) 1942 Madras 289, wherein while interpreting the provision of section 87 and 88 of the Code of Criminal

Procedure, the conditions precedent to the issuance of proclamation and then passing of attachment order have been discussed in detail. Finally, it

been laid down as under

It is obvious that when the Magistrate was informed that the petitioner had already left India, the orders for attachment and proclamation are

without jurisdiction, unless he was satisfied that the accused was willfully absconding, knowing of the warrants which was issued after he had left

India. When it was clear that the accused had left India in march, it could not possibly be said that he absconded or that the accused had left India

in March, it could not possibly be said that he absconded or that he is concealing himself so that the warrant cannot be executed, which is a

condition precedent under Section 87, Criminal P.C. for the issue of a proclamation. It is also condition precedent for the issue of attachment

under Section 88. It was at first said that the petitioner was still in India and that he is concealing himself somewhere in India. If this is so,, the

action of the Magistrate would be perfectly justified. I asked the complainant whether he would state so in an affidavit, and I gave him an

opportunity of stating it in an affidavit. In the affidavit filed by him he has not contradicted the statement made on behalf of the petitioner that he left

India in March. Under these circumstances, I hold that orders of proclamation and attachment are without jurisdiction and as such they are not set

aside.

Adverting to the facts of the present case it is found that the learned trial Judge without ascertaining the fact as to when the warrant was issued and

when the petitioner accused left for Saudi Arbia, had passed the impugned orders that on the basis of evidence which was of cogent nature it was

found that the petitioner accused had intentionally absconded. This element is very much missing in the genesis of this order which is rendered

illegal and perverse.

In this view of the matter, the revisional petition is accpted and the orders dated 01061988 and 13081988 are set aside.

The trial Judge is directed to proceed with the trial of the case as expeditiously as possible and the officer is directed to send back the record

immediately.

The accompanying Cr.M.P. No. 181/88 also stands dispose off.