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Criminal Reference No. 187 of 1956, answered on 7th June 1957, against the order of A. D. M. Mirpur dated 19th November 1956.

Ss. 87 and 88 (1)‑--Proceedings transferred after issue of proclamation ---Transferee Court, held "Court issuing proclamation" and there fore competent to order attachment.

Where proceedings under sections 87 & 88, Criminal P. C. are transferred after issue of proclamation, the transferee Court should be considered the Court "issuing the proclamation" within meaning of section 88 (1). The transferee Court is therefore competent to order attachment without any fresh proclamation.

Ss. 87, 88, 89 & 439‑--Offender, failing to apply for restoration of attached property within terms of S. 89, not entitled to any remedy by way of revision under section 439.

Held, that although requirements of section 87, Criminal P. C. are mandatory and non‑compliance with them will render the proclamation null and void, yet if the proclaimed offender does not come within two years of attachment of his property. to claim restoration of same within terms of section 89, Criminal P. C., he has no remedy by way of revision under section 439.

If an offender does not avail of sections 87, 88 and 89, Criminal P. C., which form a complete Code in themselves, he must suffer the consequences of his failure.

Muhammad Yousaf Saraf for Fazaldad proclaimed offender.

Muhammad Yahya Cheema for Petitioner.

This is a reference by the Sessions Judge Mirpur dated 13th November 1956, in which he has recommended that as the provisions of sections 87 and 88, Criminal P. C. were not strictly adhered to while auctioning the immovable property of Fazal Dad, the proclaimed offender, suitable orders may be passed.

One Abdul Ghani son of Ghulam Haider, caste Arain, had lodged a complaint under section 498/ 109, A, P. C. against Mst. Rabia Bibi and Phalla (Fazal Dad) and others on 24th April 1952. Mst. Rabia Bibi and Phalla did not appear and were, therefore, proceeded against under section 512, Criminal P. C. on 13th December 1952. In the same order it was ordered by the Magistrate that the proceedings under sections 87 and 88, Criminal P. C. should be started against the two absconding accused. As a result of this order, proclamations were issued against the two accused requiring them to appear in the Court on the 14^th January 1953. On 14th January 1953, none of the two accused appeared in the Court but as the Presiding Officer was on tour, no suitable order was passed. On 28th January 1953, when the file was put up before the Magistrate, he ordered that fresh proclamations be issued as the previous pro clamation had not been published in accordance with the requirements of section 87. Soon after that, the file of the case was transferred to the Court of District Magis trate, Mirpur and from there on 5th March 1955, to the Court of Additional District Magistrate Mirpur. The Addi tional District Magistrate without ascertaining whether fresh proclamations had been issued as ordered on 28th January 1953, by the Magistrate from whose Court the case was transferred to his Court, ordered the attachment of the property of the two accused under section 88, Criminal P. C. The attachment was effected on 10th October 1953, (as appears from the interim order) and subsequently the property was auctioned and purchased by one Raja Abdul Ghani. The sale was confirmed by the Court on 17th August 1954.

It has been argued at length that since the provisions of section 87 were not strictly complied with, the auction was illegal and should, therefore, be set aside and the property restored to Phalla accused. It may be mentioned here that only the immovable property of Phalla accused was put to auction. The other accused Mst. Rabia Bibi was stated to possess no immovable property. Certain other draw‑backs in the order of the Court were also pointed out and these are as under:‑

(i) that the requirements of section 87 Parts (2) and (3) were not complied with;

(ii) that it was only the Court issuing the proclamations that could attach the property as required by section 88 Part (1);

(iii) that as required by section 89, Criminal P. C., Phalla, whose property was auctioned, never applied to the Court within two years nor when he was apprehended and brought before the trial Magistrate did he ask for the restoration of his property or its net proceeds;

Before I proceed further, I consider it proper to examine what requirements of sections 87 and 88, Criminal P. C. were complied with and what were not complied with and then to see what would be the effect of non‑compliance.

Perusal of the file shows that warrants of arrest were issued against the two absconding accused but they could not be served. The statement of the constable who was entrusted with the task of effecting service was recorded on the 13th December 1952. This statement is on page 16 of the trial Magistrate's file. Muhammad Din constable No. 165 was the person entrusted with the task of serving the warrants of arrest on the accused. He stated that he searched for the two accused but could not find them, that his enquiry had revealed that they had left for Pakistan and that there was no likelihood of their apprehension in the near future. On the basis of this statement, the trial Magistrate ordered proceedings to be started against the accused under sections 87 and 88, Criminal P. C. This would show that the trial Magistrate satisfied himself that the accused were absconding or concealing themselves so that warrants could not be executed and to this extent he followed the provisions of section 87, Criminal P. C. After taking this step, pro clamations were ordered to be issued but as stated above the proclamations issued having not been published in accordance with the requirements of section 87 Part (2) Criminal P. C., fresh proclamations were ordered to be issued, The file was then transferred to the Additional District Magistrate, Mirpur through the District Magistrate, Mirpur, who, as is clear from the file did not care to ascertain whether fresh proclamations had been issued, ordered the attachment of the property of Phalla accused Thus, it is clear that a very important and necessary requirement of section 87 Part (2) was not complied with and also as a result of it, even the requirement of section 87, Part (3) was not complied with. Part (3) requires a statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day and is conclusive evidence that the requirements of section 87 Criminal P. C. were complied with.

Phalla accused appeared in the Court of Additional District Magistrate, Mirpur on 15th February 1954, but as he had announced judgment in the case, he sent the file to the Revenue Assistant, Magistrate 1st Class, Mirpur for trial of Phalla and Mst. Rabia Bibi. It appears from the file that Phalla, with whom the case was later on compounded, never applied under section 89, Criminal P. C., either for the restoration of the property or its net proceeds. For proper disposal of this case, it is necessary to give a finding on the following points:

(a) Whether the Additional District Magistrate could attach the property under section 88, Part (1) when the proclamations under section 87, Criminal P. C. were not issued by him

(b) What is the effect of non‑compliance with section 87, Part (2), Criminal Procedure Code

(c) In case the non‑compliance rendered the proceedings null and void and the property of Phalla was auctioned, what would be the result in view of the limited scope of section 89, Criminal P. C. which does not provide any remedy in such a case

(d) Phalla, the proclaimed offender, never moved the Court under section 89, Criminal P. C. within time limit, either for restoration of his property or its net proceeds. How could this effect his case

There is a conflict of judicial opinions on the points involved in the case and I, therefore, feel that it would be better if a bigger Bench of this Court hears the case and disposes it off.

It may be mentioned here that the learned Counsel for the vendee relies on 1911 P R 8 and A I R 1928 Lah. 562. His contention is that all that Phalla is entitled to is the net proceeds of the sale in case he is considered to have met the requirements of section 89, Criminal P. C.

A I R 1924 Bom. 485 lays down that the High Court cannot make any order which would conflict with the provisions of section 89 Criminal P. C. in the exercise of their inherent power and if the application for restora tion has not been made within two years from the date of the attachment, the Court has no jurisdiction to make restoration; proper remedy is to apply to the Government at whose disposal the property is according to Law.

In A I R 1926 Lah. 662 it was held that it was not only necessary to make a petition but also to prove the necessary facts within the period of two years.

The file may be put up to my Lord the Chief Justice for necessary orders in the case.

This case has been referred to the Full Bench for clarification of points:‑

(a) Whether the Additional District Magistrate could attach the property under section 88, Part (1) when the proclamations under secti n 87, Criminal P. C. were not issued by him

(b) What is the effect of non‑compliance with section 87, Part (2), Criminal P. C.

(c) In case the non‑compliance rendered the proceedings null and void and the property of Phalla was auctioned, what would be the result in view of the limited scope of section b9, Criminal Procedure Code which does not provide any remedy in such a case

(d) Phalla, the proclaimed offender, never moved the Court under section 89, Criminal P. C. within time limit, either for restoration of his property or its net proceeds, How would this affect his case

Point (a).‑--The proclamations under section 87, Criminal P. C. were ordered to be issued by the Revenue Assistant, Magistrate 1st Class, Mirpur from whose Court the case was transferred to the Additional District Magistrate, Mirpur who attached property under section 88, Part (1), Criminal P. C. According to sub‑clause (1) of section 88, Criminal P. C., it is the Court issuing the proclamation under section 87, Criminal P. C. that may at any time order the attachment of any property movable or immovable or both belonging to the proclaimed person, It is to be seen whether the Court of the Additional District Magistrate can also be called the Court issuing the proclamation as a successor Court to the Court of Revenue Assistant, Magistrate Ist Class. Ordinarily, if a case is transferred from one Court to another, the proceedings taken up in the first Court from which the case is transferred continue in the Court to which the case is transferred except, in matters in which de novo proceedings are necessary under the law. In proceedings under sections 87, 88 and 89, Criminal P. C. which form a complete code in itself, there is no mention that when Proceedings are transferred to another Court at a certain stage the pro ceedings already taken up in the Court from which the proceedings are transferred are to be repeated. This being the case, it can be said that all the proceedings taken up in the first Court will be considered to have been taken up by the Court to which the case is transferred. Thus, the Court of the Additional District Magistrate, Mirpur will be considered as a Court issuing the proclamation and could have attached the property under subsection (I) of section 88, Criminal P. C.

Points (b) and (c).---‑Requirements of section 87, Criminal P. C. are mandatory and non‑compliance therewith renders the proclamation null and void. The authorities on the point are unanimous on the point. The important question is what would be the effect of non‑compliance with the provisions of section 87, Criminal P. C. If the non-compliance is brought to the notice of the Court in time before the sale is effected, the remedy is simple and easy. The mistakes can be rectified and the illegalities can be cured by issuing fresh orders in accordance with the requirements of the section. The difficulty, however, arises, if the illegality is not pointed out and the sale is completed. Section 89, Criminal P. C. then is the only section which provides for a remedy to the absconder in certain cases. This section, however, does not contemplate or contain any provisions for sales once held to be set aside. The question naturally crops up, whether the High Court can in the exercise of its provisional powers set aside the sale on the ground of any material irregularity or illegality as against the purchaser who is a stranger to the proceedings. We do not think it can. The inherent powers are very wide and are, therefore, to be carefully used. They are only to meet those cases for which no Provision is made elsewhere and, therefore, where there are express provisions of law, there is no inherent power in the High Court to override them. As already remarked, sections 87 to 89, Criminal P. C. form a complete code and whoever approaches the Court in accordance with the provisions of these sections can get the remedy for himself and if he does not avail of those provisions, he must suffer. It las been aptly remarked in A I R 1928 Lah. 562 and 565 by Tek Chand and Bhide, JJ. "that the provisions of sections 87 and 88, Criminal P. C., are penal in character. According to these pro visions, the property of an absconder is not Oki for six months after attachment. If a person is not absconding to evade justice, he can scarcely fail to learn about the, attachment through his relatives in charge of the property during the period. On the other hand, if he is absconding to evade justice, he must take the consequences of his own failure to comply with the process of the Court." We would go a little further and say that under section 89 of the Criminal P. C. an absconder is allowed two years from the date of attachment to appear before the Court and prove to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had not such notice of the proclamation as to enable him to attend within the time specified therein. If he does not attend the Court even within two years, he should rest content with his lot. There is no other remedy open to him.

Point (d).--‑Phalla, the proclaimed offender in this case, never moved the Court under section 89, Criminal P. C. There are certain conditions to be fulfilled by an absconder before he can claim the benefit of section 89, Criminal P. C. These are:

(a) that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant, and

(b) that he had not such notice of ‑the proclamation as to enable him to attend within the time specified therein, the burden of proof lies on the absconder and not on the State:

Provided these conditions are satisfied, he is entitled to a restoration of the property attached, where it has not been sold, or to the net sale proceeds if the property has already been sold.

He, therefore, cannot claim any remedy provided under section 89, Criminal Procedure Code. He has no doubt been following his remedy in the Civil Court, as the reference from the Sessions Judge shows, but never cared to approach the Court under section 89, Criminal P. C. He, therefore, cannot be helped. The reference by the Sessions Judge, Mirpur is rejected.

A. H. Reference rejected.

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