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Karnataka High Court
Judges : Ahmed Ali Khan
GURAPPA GUGAL - Appellant
Versus
STATE OF MYSORE - Respondent
. . Of .
Decided On : 06/11/1968
Proclamation - Criminal Procedure - The court found that the proclamation issued by the Magistrate was in contravention of the provision contained in Section 87 of the Code of Criminal Procedure, as it allowed thirty days from the date of the proclamation instead of thirty days from the date of its publication. The error committed by the Magistrate was not a mere irregularity and the proclamation ordered was quashed.
Fact of the Case:
The petitioners were involved in a charge of murder and warrants were issued against them for absconding. The Magistrate issued proclamations for the attachment of their property, which were challenged by the petitioners in revision petitions.
Finding of the Court:
The court found substance in the contention that the proclamation issued by the Magistrate was in contravention of the provision contained in Section 87 of the Code of Criminal Procedure. The proclamation ordered was quashed, and the revision petitions were allowed.
Issues: The issue was whether the proclamation issued by the Magistrate, allowing thirty days from the date of the proclamation instead of thirty days from the date of its publication, was in contravention of the provision contained in Section 87 of the Code of Criminal Procedure.
Ratio Decidendi: The court held that it was obligatory that an absconding person should be given thirty days from the date of publication of the proclamation for appearance before the Court, as envisaged by Section 87 of the Code of Criminal Procedure. The error committed by the Magistrate was not a mere irregularity and the proclamation ordered was quashed.
Final Decision: The proclamation ordered was quashed, and the revision petitions were allowed. The petitioners would be entitled to all the consequential benefits resulting from this order quashing the proclamation.
( 1 ) IDENTICAL point of law arises foe consideration in bath these revision petitions. Therefore both of them are disposed of by this common order.
( 2 ) THE petitioners were involved on a charge of murder in Criminal Case No. 165/2 of 1967 on the file of the First Class Magistrate, Shorapur. Warrants were issued against them when it was stated by the police that they were absconding. Thereafter the Magistrate issued proclamations for the attachment of their property. Those proolamations are challenged by the petitioners in these revision petitions.
( 3 ) MR. Hegde the learned Counsel for the petitioners submitted that the provision of Section 87 of the Code of Criminal Procedure is mandatory and a proclamation under that Section ought to have been issued specifying not less than thirty days from the date of publishing of the proclamation for the appearance of the petitioners before the Court. Bat the Magistrate has given thirty days time from the date of the proclamation which is evidently in contravention of the provision contained in Section 37 of the Code of Criminal Procedure.
( 4 ) I find substance in the contention. At copy of the proclamation is filed. The relevant portion of the same reads as follows:
Proclamation is hereby made that the said. . . is required to appear before this Court to answer the complaint within 30 days 'from this date. ' (Underlining here in single quotation marks-Ed) is mine ). It is thus clear that the thirty days time allowed by the Court was from the date of the proclamation and not from the date of its publication as envisaged by Section 87 of the Code of criminal Procedure. It was obligatory that an absconding person should be given thirty days time from the date of publication of the proclamation for his appearance before the Court. Therefore the error committed by the Magistrate cannot be construed to be a mere irregularity which can be cured under Section 587 of the Code of Criminal Procedure.
( 5 ) IN the result the proclamation ordered is quashed, and these revision petitions are allowed.
( 6 ) MR. Hegde the learned Counsel for the petitioners submitted that the property of the petitioners have been attached. If that is so, the petitioner will be entitled to all the consequential benefits resulting from this order quashing the proclamation.
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