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HIGH COURT OF CALCUTTA
DEBABRATA MOOKHERJEE
PANCHU GOPAL MULLIK - Appellant
Versus
STATE - Respondent
Criminal Revn. 1415 Of 1954
Decided On : JUNE 10, 1955
CRIMINAL PROCEDURE CODE - SECTION 88 - ATTACHMENT OF PROPERTY - CLAIM OR OBJECTION - PROCEDURE - LIMITATION - INTERPRETATION - CONCLUSIVENESS OF ORDER - INTEREST IN PROPERTY - SCOPE OF INQUIRY.
Fact of the Case:
A Magistrate in Ludhiana, East Punjab, ordered the attachment of property belonging to an absconding accused under Section 88 of the Criminal Procedure Code (CrPC). The order was certified to the district of 24-Parganas, West Bengal, and served on the property of the petitioner, who claimed ownership of the property and objected to the attachment. The petitioner's initial objection was dismissed for non-prosecution, but the proceedings were later revived by a Magistrate. The petitioner produced evidence to establish his claim, but the Magistrate held that he had no jurisdiction to consider the matter on the merits and dismissed the objection.
Finding of the Court:
The High Court held that the Magistrate erred in dismissing the petitioner's objection without considering the merits of the case. The Court held that Section 88 of the CrPC provides a complete machinery for the investigation of claims and objections to property attached under the section, and that the Magistrate is required to hold an inquiry into the interest of the party claiming or objecting. The Court also held that the period of limitation prescribed in Section 88(6D) does not apply to an application for revival of proceedings that have lapsed due to non-prosecution.
Issues: 1. Whether the Magistrate had jurisdiction to consider the petitioner's objection to the attachment of his property. 2. Whether the period of limitation prescribed in Section 88(6D) of the CrPC applies to an application for revival of proceedings that have lapsed due to non-prosecution.
Ratio Decidendi: 1. The Court held that the Magistrate had jurisdiction to consider the petitioner's objection to the attachment of his property. The Court reasoned that Section 88 of the CrPC provides a complete machinery for the investigation of claims and objections to property attached under the section, and that the Magistrate is required to hold an inquiry into the interest of the party claiming or objecting. The Court also held that the Magistrate's view that the Criminal Court is concerned with the question of possession only and has nothing to do with the question of 'interest' of the party concerned was an evasion of the statute. 2. The Court held that the period of limitation prescribed in Section 88(6D) of the CrPC does not apply to an application for revival of proceedings that have lapsed due to non-prosecution. The Court reasoned that the order of revival of the proceedings stands good and the alleged conclusiveness of the order cannot possibly relate back to a point of time when the proceedings were said merely to lapse on account of non-prosecution.
Final Decision: The High Court made the Rule absolute, set aside the order of the Magistrate, and directed that the matter be reheard and disposed of in accordance with law by a Magistrate named in Sub-section (6c) of Section 88 of the CrPC.
( 1 ) THIS revision petition raises a rather interesting question of law.
( 2 ) ONE Jagabandhu Mallick left two sons, one of them being the petitioner Panchu Gopal Mallick and the other Akshoy Kumar Mallick since deceased. Akshoy left behind two sons of whom Arun Kumar Mallick petitioner 2 is one. Akshoy had a daughter who was given away in marriage and she died sometime ago leaving behind one Shyamsundar, who is said to be an absconding accused for whose apprehension proceedings fay way of proclamation and attachment have been taken.
( 3 ) A plot of land was said to have been purchased quite a long time ago by the father of the petitioner Panchu Gopal Mallick where certain structures were later raised by the latter and in the house thus constructed the absconding accused Shyamsundar was permitted- to live. The petitioners' case is that Shyamsundar lived there as a licensee and that he had no interest, claim or title to the property in question,
( 4 ) IT appears that a Magistrate of Ludhiana in the East Punjab had made an order under Section 88, Criminal P. C. , purporting to attach the property of the absconding accused Shyamsundar. This order of attachment was certified in due course to the district of 24-Parganas and was served by the local police on the property mentioned above, belonging to the petitioner Panchu Gopal Mallick.
( 5 ) THEREAFTER in March 1952, the present petitioners objected to the attachment and preferred a claim in the Court of the Sub-divisional Magistrate, Alipore. The objection was based on the ground that the absconding accused had no interest whatever in the attached property and consequently the petitioners' interest was not liable to be affected by any process issued or purported to be issued under Section 88 of the Code.
( 6 ) IT is stated that on account of the old age of the petitioners and particularly the illness of petitioner Panchu Gopal Mallick which necessitated his removal to the Presidency General Hospital Calcutta for treatment, the application objecting to the attachment was not properly prosecuted with the result that on 17-12-1952, the learned Sub-divisional Magistrate without recording any evidence directed the petitioner's objection to be "filed". Thereafter an application was made for revival of the proceedings and the prayer was allowed on 24-3-1954. Presumably the Magistrate who dealt with the petitioner's application for restoration of the proceedings felt persuaded that the ground for non-prosecution was a bona fide one. The proceedings thus revived were thereafter transferred for disposal to Mr. M. L. Chatterjee, Magistrate, 1st Class, Alipore. In the enquiry that followed, the petitioners produced evidence both oral and documentary and it was contended that the absconding accused Shyamsundar had no interest whatever in the properties attached which the petitioners claimed as belonging to them. The learned Magistrate however by an prder dated 6-12-1954 disposed of the matter whereafter the present Rule was applied for and obtained.
( 7 ) MR. Bhose appearing on behalf of the petitioners has raised several contentions. He has contended that the learned Magistrate has misconceived the true scope of Section 88, Crininal P. C. The argument is that when property is attached pursuant to the provisions of the law contained in Chap. VI of the Code which deals with processes to compel appearance of accused persons, the claimant or objector has to be given reasonable opportunity for the purpose of establishing the claim or objection as the case may be. It is contended also that the provisions contained in Sub-section 6 (D) and the sub-sections immediately preceding it imply a proper enquiry into the claim preferred and it is only after such enquiry that the order made by the Magistrate becomes conclusive. It has also been argued that it is not open to the Magistrate to review an order passed by his predecessor allowing the petitioners' application for revi
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