The central legal point established in the judgment is that for a proclamation to be issued, the accused must be shown to be absconding or concealing himself, and the accused cannot be said to be wilfully absconding knowing of the warrant if he had already left the country before the warrant was issued.

( 1 ) THIS petition is filed by one MSB. Gundappa, father of Dr. M. G. Nagaraj, who is abroad.

( 2 ) THE facts as set out in the petition, are-The petitioner and his three sons are doing business in Drugs in Chikmagalur town under the name M/s Fair Price Drug Stores. The petitioner is the Managing Partner. On account of his old age, he is assisted by his sons M]s M. G. Krishna and m. S. Babushankar. His another son, Dr. M. G. Nagaraj, a Veterinary doctor; 'left for the USA for further studies and appointment, on or about 21-6-1973. Since then he has been permanently residing there.

( 3 ) DR. NAGARAJ was arrayed as the 4th accused in the Court of the chief Judiciial Magistrate, Chikmagalur in CC. 611/75. The charge-sheet wss filed in the Magistrate's Court on 6-5-1975. On that day Dr. M. G. Nagaraj was not in India and was in the USA, settled down there and serving as a Doctor. The Magistrate ordered summons to the four accused persons, returnable by 24-6-1975. The fact that Dr. Nagaraj was in the usa was, unfortunately, not brought to the notice of the Magsitrate. He, again, ordered summons to Dr. Nagaraj, returnable by 22-7-1975. On that day, the Asst Public Prosecutor requested the Court to bifurcate the case against Dr. M. G. Nagaraj and to register a separate case, and accordingly on 2-8-1975 the case against Dr. Nagaraj was separated and registered as cc. 1013/75. On 2-8-1975 the Magistrate ordered N. B. Warrant to Dr. Nagaraj and directed that it should be sent through the S. P. for execution, returnable by 30-8-1975. According to the order sheet, the N. B. Warrant was not executed stating that Dr. Nagaraj has been to America. The case was posted on various dates at the request of the Asst Pubilc Prosecutor. On 8-6-1976, the Magistrate ordered issue of proclamation under Sec. 82, crlpc (1973), returnable by 19-7-1976. The proclamation is d/. 14-6-1976. The heading is-Proclamation for person absconding.

( 4 ) THE proclamation is dj. 14-6-1976. It was published 1 on 18-6-1976. Dr. M. G. Nagaraj was asked to appear within 30 days from 14-6-1976. This, as contended by Sri Kalasa Shamanna, learned Advocate, is clearly illegal as per the conditions prescribed by the Code. That Dr. M. G. Nagaraj was in the USA long prior to the issue of the summons and the proclamation is borne out by several documents, including the report of the Police Omcer. He could not, therefore, be said to be absconding, and a proclamation was clearly unwarranted and illegal. S. 82 of the new Code (S. 87 of the old code) lays down that if any Court has reason to believe 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 it. No specific time is mentioned in the proclamation, and thirty days from the date of publishing it are not there.

( 5 ) BELOW the N. B. Warrant is a Memo which reads-" The Sub Inspector of Police, Town Police Station, Chikmagalur is hereby directed to ascertain and submit whether the accused person in the above case has any movable or immovable property owned by him on or before 19-7-76 to which date the case stands posted. "in this context Sri Shamanna placed before me a decision of the Madras high Court in Vallayappa Chettiar v. Alagappa Chettiar, AIR. 1842 Mad. 289. What is laid down there is-" Before a proclamation under S. 87 or an attachment under S. 88 can be issued, it must be shown that the accused is absconding or concealing himself so that the warrant for his arrest cannot be executed. Where after the issue of the warrant the Magistrate is informed that the accused had already left India before the warrant was issued, the orders of attachment and proclamation are without jurisdiction inasmuch as since the accused could not have known of the warrant which was issued after

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