Rachna Kedia vs State of Madhya Pradesh and Another

N.K. Gupta, J.—The applicant has moved the present petition u/s 482 of Cr.P.C. for quashing the order dated 18.3.2011 passed by the learned J.M.F.C., Bhopal in Crime No. 829/09 registered at Police Station, Piplani. Facts of the case in short are that, the applicant Rachna Kedia is declared absconded in Crime No. 829/09 registered at Police Station, Piplani and therefore, the proceedings under Sections 82 & 83 of Cr.P.C. were initiated against her. Vide order dated 18.3.2011, it was directed that the House No. E/10 situated at Saket Nagar, Indore, which was in the name of the applicant be attached.

I have heard the learned counsel for the parties at length.

The learned senior counsel for the applicant has submitted that an attachment warrant can be issued only after issuance of proclamation and the proclamation u/s 82 of Cr.P.C. requires for appearance of that person against whom, the warrant was issued for a fix date and the fix date should not be less then 30 days from the date of publication of proclamation. In this case, the proclamation was issued that the applicant was required to appear before the Court and on 22.2.2011. It was alleged that the order was directed to the police for issuance of proclamation on 10.1.2011 and letter was issued by the Court on 13.1.2011 but it was published in the newspapers on 8.2.2011. It was directed that the copy of proclamation be affixed at the place of resident of the applicant, where she lastly resided and also be pasted in the office of the Municipal Corporation. However, the concerned serving officer did not submit any report that such proclamation notices were pasted on the residence or office of the applicant one month prior to the date given by the Court or notice was pasted in the office of Municipal Corporation one month prior to the date given by the Court below therefore, since the notice was not served in such a manner so that clear 30 days time was given to the applicant therefore, the publication of proclamation was not done in a proper manner and hence, on 22.2.2011 no attachment order could be passed.

On the other hand, the learned Government Advocate has submitted that the action taken by the concerned Magistrate appears to be correct.

As per the Provisions of Sections 82 & 83 of Cr.P.C., it is necessary for the Magistrate to issue a proclamation against the person absconding but the publication of such proclamation would be done according to the procedure laid in the Section 82(2) of Cr.P.C. but there must be a clear 30 days'' time be given to the absconding accused to comply with the proclamation, otherwise the property which was indicated in the proclamation cannot be attached. In the present case, the order for proclamation was done on 10.1.2011 with the directions that the accused shall remain present before the Court on 22.2.2011 and a letter dated 13.1.2011 was issued to the police therefore, the publication was required to be done on or prior 22.1.2011. It is apparent that the proclamation was published in the newspapers on 8.2.2011, whereas no clear 30 days time was remained to the applicant. Similarly, the police officer concerned could not file any service report that the proclamation was pasted in the house or the office of the applicant on a particular date, which was 30 days prior to the date of appearance. Similarly, it is not established that the proclamation affixed in the conspicuous part of office of the Municipal Corporation within the stipulated period. Under such circumstances, the proclamation was not published in such a manner by which clear 30 days'' time could be received by the applicant for her appearance and therefore, procedure laid down u/s 83 of Cr.P.C. was not followed strictly. Since it was not followed strictly therefore, it is for the trial Court to issue a fresh proclamation u/s 82 of Cr.P.C. according to the Provision of Sections 82 & 83 of Cr.P.C. Consequently, the order relating to the attachment passed by the learned J.M.F.C. appears to be beyond its jurisdiction. Since clear 30 days'' time was not given to the applicant after publication of its proclamation, the attachment of her property could not be done and therefore, the order dated 18.3.2011 passed by the learned J.M.F.C. Bhopal cannot be maintained.

On the basis of aforesaid discussion, the order dated 18.3.2011 passed by the learned J.M.F.C. (Smt. Smrita Singh Thakur), Bhopal relating to the applicant is hereby set aside. If the learned Magistrate thinks fit, then a fresh proclamation may be issued and thereafter, an attachment order can be passed according to the law. Copy of the order be sent to the Court below for information and compliance.