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Criminal Revision No. 126 of 1961, decided on 10th May 1961.
‑Thirty day limit for surrender not always necessary.
--Processes under Ss. 87 and 88 can be issued together if warrant of arrest already issued.
Bishundayal Mahton and others v. Emperor A I R 1943 Pat. 366 rel.
‑Restoration of attached property can be secured only under S. 89.
Hans Raj v. Emperor A I R 1934 Lah. 987 rel.
T. Talukdar for Petitioner.
Siddique Ahmed Chowdhury for the State.
This Rule is directed against the judgment and order of Mr. K. Rahman Khan, Sessions Judge, Noakhali dated 30th December 1960 dismissing the appeal of the petitioner against the judgment and order of Mr. H. Rahman, Magistrate, First Class, Noakhali dated 14th September 1960 rejecting the applica tion of the petitioner for restoration of the attached land and ordering that a date shall be fixed for the sale of the attached properties in consultation with the officer‑in‑charge, Company ganj and also fixing 1st October 1960 as date of sale.
2.The facts are: G. R. Case No. 1167 of 1959 was started against the petitioner on a petition of complaint before the Sub -Divisional Officer, Sadar, Noakhali by complainant Noor Muhammad under sections 376, 354 and 457 of the Pakistan Penal Code and a charge‑sheet was submitted against the accused peti tioner showing him as absconding.
3. On a prayer for warrant of arrest, it was so issued and he was produced before the Court and sent to jail hajat. Later on he was granted bail due to illness, 13‑3‑59 was fixed for hearing and P. Ws. were present when the petitioner again absented himself and again a warrant of arrest was issued against him and he was re‑arrested on 17‑11‑59. He absconded from police custody in the Sadar Hospital on 18‑11‑59 and the learned Magistrate issued warrant of arrest and proclamation and attach ment against the petitioner.
4. On 16‑12‑59 the petitioner was still absconding and a fresh proclamation and attachment was issued asking the O. C., Companyganj to execute the same promptly.
5. The petitioner was later on arrested and he was committed to the Court of Sessions for trial and in the Sessions trial he was convicted. His appeal against the conviction and sentence is pending and in the meantime he filed the present petition before the Magistrate to pass restoration order of the properties attached during the period of his absconsion. The learned Magistrate as stated by his order dated 14‑9‑60 rejected the same and the learned Sessions Judge upheld this order in appeal as stated.
6. Mr. T. Talukdar, learned counsel appearing for the petitioner has urged that the proclamation issued in this case is bad in law inasmuch as the accused was required to appear within less than thirty days of the publication of the pro clamation.
Mr. Talukdar has referred to the proclamation order issued in this case of which the date of issue is 14‑12‑59 and the accused had been asked in terms thereof to appear on the 31st of December 1959.
The order shows that the accused was to appear before the S. D. O.'s Court in course of seventeen days only from the date of issue. The learned counsel has referred in this connection to the provisions of section 87 (1) of the Code of Criminal Procedure as under:‑
"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 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".
7. Mr. Talukdar has relied in support on the decision in Emperor v. Multan Singh (54 I C 994), in which it was held as under: ‑
" A person applying under section 89 of the Criminal Procedure Code to set aside an order of forfeiture of the pro perty cannot contest the legality of the proclamation under that section, but there is nothing to prevent the High Court from considering it in the exercise of the revisional jurisdiction.
An order under section 87 (3) of the Criminal Procedure Code, stating that the proclamation was duly published but omitting to specify the date of the publication, cannot be con sidered as conclusive evidence that the requirements of section 87 have been complied with.
Where a proclamation under section 87 of the Criminal Procedure Code does not give thirty days for the appearance of the accused, the proclamation is invalid and the subsequent proceedings following upon it are liable to be set aside."
It is the latter portion of the principles, namely, that if the period given is less than thirty days, the subsequent proceedings will be illegal, that Mr. Talukdar is pointing out in his support in particular.
8. It appears that the facts of the case cited are a little different. In it not only the time given for appearance was less than thirty days but also the publication of the proclamation and the validity of the validating order was challenged. In other words, there was violation of all the features of section 87 of the Code of Criminal Procedure, namely, subsections (1), (2) and (3) which is not the case here.
9. In the present case the accused had been absconding since the time of charge‑sheet and on a warrant of arrest he was produced before the Court. On 13‑3‑59 he again absconded himself and again a warrant of arrest was issued and he was re‑arrested on 17‑11‑59.
On 18‑11‑59 he again absconded from police custody. It was under those circumstances that proclamation and attachment order was again issued.
On 16‑11‑59 the accused was still absconding and a fresh proclamation and attachment was issued but without success.
It was not till 15‑5‑60 that he was brought under arrest from Comilla to the Court.
Nearly five "months had passed since the date of the impugned proclamation and attachment order.
10. The facts of the present case are thus very peculiar and there is absconsion after absconsion and from the mere fact that thirty days' time was not given for surrender, it cannot be held A that the proceedings are wholly invalid.
11. Mr. Talukdar has next argued that there cannot be simultaneous issue of proclamation and attachment. As con tended by Mr. Siddique Ahmed Chowdhury appearing for the State, there is no bar to simultaneous issue of both. He had cited the decision in Bishundayal Mahton and others v. Emperor (A I R 1943 Pat. 366), which held inter alia that it cannot be said that processes under section 88 cannot be issued unless processes under section 87 had been issued first. It is not necessary that processes under section 88 should be delayed till the time fixed in the process under section 87 has elapsed. Hut processes under sections 87 and 88 cannot be issued unless it is established that warrant had already been issued against the person wanted and that person was absconding.
There is no doubt in the present case that warrant had already been issued not once but several times without success.
It thus appears that this contention of the learned counsel has also no substance.
12. Mr. Talukdar has text argued by reference to section 89 of the Code of Criminal Procedure that the petitioner was entitled to restoration of the property attached even though he was apprehended and brought before the Court.
Section 89 of the Code of Criminal Procedure is as under: ‑‑
"If, within two years from the date of the attachment any person whose property is or has been at the disposal of the State Government' under subsection (7) of section 88, appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves 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 bad not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying thereout all costs incurred in consequence of the attachment, be delivered to him."
13. It is true that there is no bar to the restoration petition being canvassed by the petitioner even though he did not voluntarily surrender. But then the restoration petition does not disclose the elements necessary to show that he did not abscond or conceal himself for the purpose of evading execution of the warrant and that he had no notice of the proclamation. It does not also appear that the accused sought to give evidence. Both Courts have agreed that no feasible explanation was offered.
14. Further there is the important question whether the petitioner who took no steps in the proper course against the proceeding under sections 87 and 88 of the Code of Criminal Procedure on the ground of their irregularity, can at this stage challenge them.
15. It appears in the light of the decision in Hans Raj v. Emperor (A I R 1934 Lah. 987) and cited by the learned Advocate for the State that it is too late in the day for the petitioner to re‑open the legality or otherwise of orders under sections 87 and 88 of the Code of Criminal Procedure in an application for restoration under section 89 of the Code. .
16. It was held in the decision as under: ‑
"Where proceedings under sections 87 and 88 have been taken to procure the attendance of the accused, the only way the accused can adopt to obtain release of his property under the Criminal Procedure Code Is by way of the application under section 89 and a Magistrate has no jurisdiction to set aside the order of attachment whether irregular or root and whether passed by himself or some other Magistrate except by virtue of this section. He has no inherent jurisdiction to set aside an order of attachment even if that order is illegal.
In proceedings under sections 87 and 88 failure to give the necessary notice does not amount to more than an irregularity curable under section 537 of the Code of Criminal Procedure."
Under the circumstances stated above, this ground of Mr. Talukdar also fails.
In the result, the Rule is discharged.
S. B.
Rule discharged.
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