Vinay Kumar Kedia vs State of Madhya Pradesh

N.K. Gupta, J.—The applicant has moved the present revision petition against 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 Vinay Kumar 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 him. Vide order dated 18.3.2011, it was directed that the property of the applicant situated at Indore 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 he 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 passed 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. Vide order dated 2.5.2011, the learned Presiding Officer of the trial Court was directed to send the service report about the publication of proclamation notice and the learned Presiding Officer of the Court has submitted a detailed report on 18.5.2011 by which it would be clear that except of pasted the copy of proclamation on the notice board of the trial Court, all other notices were not published in due course and therefore, no clear a period of 30 days remained after date of publication so that the applicant could appear before the Court. 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 his appearance and therefore, procedure laid down u/s 83 of Cr.P.C. 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 his 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. If is further noticed that no specific property of the applicant is shown in the proclamation and therefore, if notice was served then, it was not clear that which property would have been attached. The learned J.M.F.C. should be clear before issuance of the proclamation notice about the property, which is required to be attached in absence of the applicant.

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.