( 1 ) THE First Class Magistrate, Koppal by his order passed on an application presented by the petitioner under S. 89 Cr. P. C. , in Misc. Case no. 84 of 1970, requesting for release of the attached properties in his favour, rejected the request. This petition is directed against that order. The facts necessary for a decision are: that in CC. No. 21 of 1968 on the file of the said First Class Magistrate, this petitioner was one of the accused. The charge was under 302 IPC. As it was reported that the petitioner was absconding and the Magistrate felt satisfied, he issued a proclamation under S. 87 Cr. P. C. The proclamation was issued on 17-10-1968. It may be mentioned here itself that by the said proclamation, the magistrate called upon the petitioner to appear in his Court within 29-10-1968 to answer the complaint.

( 2 ) AS the petitioner did not appear in the said Court, the Magistrate proceeded to take action under S. 88 Cr. P. C. and attached the properties in question. It is found that the said criminal case ended in acquittal of the remaining accused and that thereafter this petitioner appeared and filed the application in question. In that application the petitioner has made out that he had no knowledge of such a criminal case pending against him and that he was required to be present in the Court in that case and that he was not at all aware of the proclamation and further that the proceedings started against him under Ss. 87 and 88 Cr. P. C. are null and void, and, therefore, he was entitled to return of the attached properties.

( 3 ) THE records received from the lower Court show that the petitioner has examined witnesses in proof of the fact that he was not aware of the proceedings in CC. No. 21 of 1968 and that he was not absconding. The learned Magistrate has disbelieved the said evidence. In regard to release of properties, he has relied upon the decision in palsingh v. The State, AIR 1955 Pun 18. He has held on the basis of this decision that the contention of the proclamation being illegal and the entire proceedings based thereon also being illegal, cannot be taken into consideration while dealing with an application under S. 89 Cr. P. C.

( 4 ) THE proclamation was issued on 17-10-1968. It was proclaimed therein that the petitioner was to appear before the lower Court within 29-10-1968. S. 87 (1) of Cr. P. C. mandatorily lays down that such proclamation, requiring an absconding person to appear at a specified place and a specified time, should fix the date and time not less than thirty days from the date of publishing such proclamation. It is evident that the time fixed for the appearance of the petitioner is within thirty days. Therefore, it is also clear that the proclamation issued by the Magistrate has violated the mandatory provision of S. 87 Cr. P. C. In gurappa Gugal v. State of Mysore, 1968 2 Mys. L. J. 630. this Court has held that the provision of S. 87 Cr. P. C. is mandatory and a proclamation under that section ought to specify not less than thirty days from the date of publishing of the proclamation for the appearance of the accused, and further that giving thirty days from the date of the proclamation is in contravention of the section and such an error is not curable under S. 537 Cr. P. C. It was further directed by this court in that case that in regard to attachment of the property of the petitioner in the said case, all consequential benefits resulting from the order quashing the proclamation were to be given to the petitioner. Therefore, it is spen that the proclamation in question is not at all curable. It is to be quashed and the petitioner is entitled to all the benefits flowing therefrom.

( 5 ) IN Pal Singh v. The State (1), it is held that the only two conditions laid down in S. 89 Cr. P. C. will have to be taken into consideration and that even if attachment had been made irregularly in contravention of the provisions of S. 87 Cr. P. C. , that would not be available for a decision unde

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