Molly vs State

B.M. Thulasidas, J.—Heard.

Petitioner is the wife of the accused in C.C. No. 37 of 1989 of the Judicial Second Class Magistrate Court, Alwaye. The case is for an offence punishable u/s 279 I.P.C. Summons issued to the accused was returned unserved. Non-bailable warrant also could not be executed. In the circumstances the Magistrate took steps under Sections 82 and 83 Code of Criminal Procedure and when the property of the accused was attached, the Petitioner put forward a claim u/s 84 Code of Criminal Procedure which was dismissed by the Magistrate and his order was confirmed in Crl. R. P. No. 34 of 1991 by the Additional Sessions Judge, Paravur. According to the Petitioner, the Magistrate did not follow the correct procedure and the attachment of the property was illegal. It was also submitted that the Sessions Judge made wrong observations as to the procedural aspects of the matter and committed a serious mistake in confirming the order of the Magistrate.

Indeed the accused had failed to appear inspite of process issued to him and it was rightly held that he had absconded. The Magistrate was therefore right to deal with him as an absconding offender. u/s 82(1):

If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

Sub-section (2) of the section deals with the publication of the proclamation and the manner in which it should be done. Sub-section (3) states that:

A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on. a specified day, in the manner specified in Clause (i) of Sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

Section 83 deals with attachment of property of person absconding. It states:

The Court issuing a proclamation u/s 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both, belonging to the proclaimed person:

As per the proviso, where at the time of "issue of proclamation" the Court is satisfied, by affidavit or otherwise, that the person in relation to whom the proclamation is to be issued-

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of the Court, it may order the attachment simultaneously with the issue of the proclamation.

It is obvious that the proceedings under Sections 32 and 83 Code of Criminal Procedure are distinct and separate and they should not be resorted to simultaneously as a matter of course. The Court must be satisfied by affidavit or otherwise as to the conditions in provisos (a) and (b) of Sub-section (1) of Section 83 for ordering attachment of property either movable or immovable or both of the absconding offender simultaneously with the issue of proclamation u/s 82. Observance of the said conditions is mandatory and the Additional Sessions Judge was wrong to have stated otherwise. I am unable to agree with his general observation that Section 83 Code of Criminal Procedure "authorises the Court to order proclamation and attachment simultaneously".

I agree that the Judicial First Class Magistrate, Alwaye had not cared to abide by the statutory provisions for attachment of property and therefore the order of attachment cannot be sustained. The Magistrate is directed to take steps afresh under Sections 82 and 83 Code of Criminal Procedure as per the procedure prescribed. If the Petitioner makes an application u/s 84 Code of Criminal Procedure it will be considered and disposed of in accordance with law after giving her an opportunity of being heard.

The impugned orders are set aside and the Crl. M. C. is allowed as above.

*A reproduction from ILR (Kerala Series).