Parmar Lalubha Karnubha vs State

Baxi, J.—This is a revision application against the order of the Sessions Judge, Jhalawad Division, confirming an order of the First Class Magistrate, Muli, by which he rejected the Petitioner''s application u/s 89, Code of Criminal Procedure

The facts briefly stated are as follows. The Petitioner along with 15 Ors. was concerned in an offence punishable under Sections. 307 and 120(b), I.P.C. After the offence was taken on registrar, the Deputy Superintendent of Police made a report to the then First Class Magistrate, Muli (Mr. R.J. Lala) on 28-7-50 that after repeated attempts the Petitioner could not be arrested as he was absconding and requested that proceedings under Sections 87 and 88, Code of Criminal Procedure, should be taken against him. The Magistrate thereupon passed an order dated 29-7-50 directing'' a proclamation to issue u/s 87, Code of Criminal Procedure and on 9-9-50 he ordered attachment of the Petitioner''s Immovable and moveable properties.

In accordance with this order, the learned Magistrate attached the Petitioner''s Immovable property by his order dated 23-10-50. Proceedings against the rest of his co-accused were commenced in the Magistrate''s Court and they were discharged by him on 18-7-51. By this time Mr. Lala was succeeded by Anr. Magistrate. The Petitioner surrendered himself to the Court on 23-8-51 and on 26-8-51 applied u/s 89, Code of Criminal Procedure praying for raising the attachment of his Immovable property. The learned Magistrate rejected his application and in revision the learned Sessions Judge confirmed the Magistrate''s order. The Petitioner has now approached this Court in revision against the learned Sessions Judge''s order.

Section 87, Code of Criminal Procedure, reads as follows:

87 (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 a 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.

(2). The proclamation shall be published as follows:

(a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; and

(c) a copy thereof shall be affixed to some conspicuous part of the Court house.

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

It was argued on behalf of the Petitioner, that the proclamation was invalid as it did not give him clear thirty days from the publication of the proclamation within which to appear before the Court as required by Sub-section (1). It was further contended that the proclamation was not published by being publicly read as required by Sub-section (2)(a).

There is no statement by the Magistrate on record under Sub-section (3) and the Petitioner is therefore entitled to show the defects in the proclamation itself or in the manner of its publication.

The proclamation issued by the First Class Magistrate requires the Petitioner to apper in Court ''within thirty days'' of its publication. This is not in accordance with Sub-section (1), which requires that the (sic) specified in the proclamation should not be less "than thirty days from the date of publication. This defect has been considered to be fatal to the legality of the proclamation in - ''Jagdev Khan v. Emperor AIR 1948 Lah 151 (A). It is true that the learned Sessions Judge has held from the circumstances of the case that the Petitioner had notice of the proclamation so as to enable him to attend within the specified time, but assuming that he had such notice, even then he was required to appear within 30 days of the publication of the proclamation and therefore it did not give him clear thirty days as required by Sub-section (1).

The next objection is against the publication of the proclamation. It is pointed out that the publication has not been made by being publicly read in a conspicuous place in the town of Muli as required by Sub-section (2)(a) of Section 87. The learned Sessions Judge recognizes that the publication of the proclamation must be in strict accordance with the Clause (a), (b) and (c) of Sub-section (2) and noncompliance thereof renders the proclamation null and void. He has pointed out that it cannot be presumed that these requirements have been duly observed. He has also pointed out that proclamation was published in the manner prescribed by Clause (b) of Sub-section (2) of Section 87 by a copy having been affixed on the Petitioner''s residence in Muli and Anr. copy having been affixed in a conspicuous place at Muli but he overlooked the fact that there was no publication of the proclamation by being publicly read as required by Clause (a) of Sub-section (2) o� Section 87. An omission to comply with all the requirements of publication prescribed by Section 87 is held to constitute a failure of justice justifying High Court''s intervention in - ''Mt. Jawai v. Emperor AIR 1942 Lah 214 (B). The proclamation was therefore not a legal proclamation and the Magistrate had no jurisdiction to attach the Petitioner''s properties for failure to appear in obedience to it.

In the result the petition is allowed. The proclamation and the attachment issued subsequent to the proclamation were illegal and we therefore direct that the property attached be restored to the Petitioner.

Before concluding we wish to point out that the errors in the proclamation and its publication appear to be due to the failure on the part of the learned Magistrate (Mr. Lala) who issued the proclamation to look up the provisions of Section 87 of the Code of Criminal Procedure. If he had done so, he would not have failed to comply with the requirements of the section. He would also have so worded the proclamation as to give the Petitioner clear thirty days for appearing before him. We would invite his attention to the printed form prescribed by the Code of Criminal Procedure in Schedule V, and direct him to conform to that form. We had an occasion to notice in ''Criminal Ref. No. 14 of 1949 (Sau) (C)'' that this Magistrate does not properly study the provisions of the law before making an order. The Magistrate would be well advised to see that in future no occasion arises which might give scope for such comments. A copy of this judgment should be sent to Mr. Lala for information.

Shah, C.J.

I agree.