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Judgment
This criminal appeal has been filed on behalf of the
appellants being aggrieved with the order dated 20.3.1993 passed
by the Addl. Sessions Judge, Bali (for short ''the trial court'') in
Criminal Case No.16/93 - State Vs. Raghuveer Singh & Ors.,
whereby the trial court while exercising powers under Section 446
Cr.P.C. has ordered for recovery of Rs.5,000/- each from the
appellants by attaching their land or the standing crop.
Brief facts of the case are that one Raghuveer Singh was
convicted by the Addl. Sessions Judge, Bali vide judgment dated
1.11.1991 passed in Sessions Case No.7/89 for the offences
punishable under Sections 304 Part-I/149, in alternative under
Section 34, 147, 447 IPC and was sentenced for the same.
Raghuveer Singh and other accused persons preferred an
appeal being S.B. Criminal Appeal No.363/1991 before this Court
against the judgment dated 1.11.1991 passed by the Addl.
Sessions Judge, Bali. This Court vide order dated 7.8.1992 has
temporarily suspended the sentence of Raghuveer Singh for a
period of two months on the condition that he shall furnish a
personal bond along with sureties for releasing on bail. Pursuant
to that, Raghuveer Singh has furnished his personal bond and the
appellants stood sureties for him. However, Raghuveer Singh has
failed to surrender himself before the jail authorities after the
expiry of period of temporary bail.
Pursuant to the directions given by this Court, proceedings
under Section 446 Cr.P.C. were initiated against Raghuveer Singh
and the appellants, however, in the meantime, Raghuveer Singh
has appeared before the trial court 5.11.1992 and he was sent to
jail. In the proceedings under Section 446 Cr.P.C. against the
appellants, the trial court has passed the impugned order. Hence,
this criminal appeal.
Learned counsel for the appellants has submitted that
Raghuveer Singh has failed to surrender himself before the jail
authorities after the expiry of period of temporary bail, but, later
on he appeared before the trial court on 5.11.1992 and in such
circumstances, the proceedings under Section 446 Cr.P.C. initiated
against the appellants, who stood sureties for Raghuveer Singh
are liable to be dropped. It is further contended that the trial court
has erred in passing the impugned order.
Learned counsel for the appellants has placed reliance on the
decision of the Hon''ble Supreme Court in Vimlaben Ajitbhai
Patel vs. Vatslaben Ashokbhai Patel & Ors ., (2008) 4 SCC
He has also placed reliance on decisions of this Court
rendered in Navia vs. State of Rajasthan & Anr., 2008 (1)
R.Cr.D. 460 ( Raj.), Smt. Raj Kumari Jain vs. State of
Rajasthan, 2012(2) WLC (Raj.) 110, and Mohd. Hussani vs.
The State of Rajasthan, 2012 WLC (Raj.) UC 296 and prayed
that the impugned order passed by the trial court may be set
aside.
It is argued by learned counsel for the appellants that this
Court vide judgment dated 1.9.1994 passed in S.B. Criminal
Appeal No.363/1991 has acquitted Raghuveer Singh while setting
aside the judgment passed by the trial court, in which, he was
convicted and looking to these circumstances also, the impugned
order passed by the trial court against the appellants is liable to
be set aside and the proceedings initiated under Section 446
Cr.P.C. against them are also liable to be dropped.
Per contra, learned Public Prosecutor has opposed the prayer
made by learned counsel for the appellants.
Heard learned counsel for the appellants, perused the
impugned judgement and carefully scrutinized the record.
The Hon''ble Supreme Court in Vimlaben Ajitbhai Patel vs.
Vatslaben Ashokbhai Patel & Ors . (supra) has held as under:
"32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code . Securing the attendance of an absconding accused, is a matter between the State and the accused. The complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon."
A Co-ordinate Bench of this Court in Navia vs. State of
Rajasthan & Anr. (supra) has held as under:
"4. It appears that during the pendency of that case, the petitioner remained absconding and for that proceeding under Sec.82-83 CrPC was initiated against the petitioner and the land of the petitioner and his brother was attached and thereafter, it was mutated in favour of the State.
From the material on record, it appears that the petitioner was facing trial of criminal case for the offence under Sec.16/54 of Excise Act, which on conclusion of the trial culminated in conviction of the petitioner but he was released on probation. The land, which was attached in proceedings under
Sec.82 and 83 CrPC was to be released from attachment on appearance of the petitioner and therefore, it was not proper for the Trial Court to have ordered to mutate his land in favour of the State.
In the circumstances, therefore, the order passed by the Court below cannot sustain and the petition deserves to be allowed to the extent that the the entire land in question mutated in favour of the State be mutated in favour of petitioner and his brother as there was absolutely no proceedings against Tulchha and as per the Jamabandi placed on record, the land was jointly owned by the petitioner and his brother Tulchha."
A Co-ordinate Bench of this Court in Smt. Raj Kumari
Jain vs. State of Rajasthan (supra) while referring the decision of
the Hon''ble Supreme Court rendered in Vimlaben Ajitbhai Patel vs.
Vatslaben Ashokbhai Patel & ors . (supra) has ordered for releasing
the attached property belonging to the appellant of that case.
In Mohd. Hussani vs. The State of Rajasthan (supra), a
Co-ordinate Bench of this Court has held as under:
"6. It is settled position of law that when the accused was summoned to appear before the court and later on if a report has been obtained on the bailable warrant that accused is out of India, it cannot be said that accused avoiding the service of the summon and, in these circumstances, the proceedings under Sections 82 and 83 of Cr.P.C. cannot be started against the accused and he cannot be declared as proclaimed offender.
Accordingly, the misc. petition is allowed and the order of the learned trial court dated 24.09.1999 and the subsequent orders passed to that order, regarding attachment of the property and auctioning of property are set aside. Learned counsel for the petitioner is directed to keep present petitioner for trial before the learned trial court within two months from today and the learned trial court shall proceed in accordance with law."
In the present case, it is not in dispute that Raghuveer Singh
has surrendered himself before the trial court on 5.11.1992 and
was sent to jail. It is also not in dispute that this Court vide
judgment dated 1.9.1994 passed in S.B. Criminal Appeal
No.363/1991 has already acquitted Raghuveer Singh and set aside
the judgment passed by the trial court.
Having considered the facts overall facts and circumstances
of the case and looking to the fact that Raghuveer Singh has
appeared before the trial court during the pendency of the appeal
filed by him and, later on, acquitted by this Court, as per the law
laid down by the Hon''ble Supreme Court as well as in the above
referred decisions of this Court, this criminal appeal is allowed.
The impugned order dated 20.3.1993 passed by the trial court in
Criminal Case No.16/93 is set aside and the proceedings initiated
under Section 446 Cr.P.C. against the appellants are ordered to be
dropped.