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1979 Supreme(Del) 22
High Court Of Delhi
N.D.GADDIREDDI - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 173 of 1978
Decided On : 02/05/1979
D.P.Singh, R.L.BHAGAT, S.Salu, SALMAN KHURSHID
The husband's obligation to maintain his wife and children is a personal obligation independent of any property owned by him.
Headnote:
CRIMINAL PROCEDURE CODE - SECTIONS 82, 83, 84, 85 - PROCLAMATION AND ATTACHMENT OF PROPERTY - CONDITIONS - INTERPRETATION - SCOPE - MAINTENANCE - HUSBAND'S OBLIGATION - INDEPENDENT OF PROPERTY OWNED.
Fact of the Case:
Petitioner, wife of Dr. G. J. Reddi, challenged the order of the trial court dismissing her application under section 84 of the Code of Criminal Procedure, 1973, seeking release of the property belonging to her husband attached in pursuance of the provisions of section 83 of the Code. The property was attached as Dr. Reddi was declared a proclaimed offender for absconding and concealing himself to avoid arrest in a case registered against him under the Official Secret Act and the Indian Penal Code.
Finding of the Court:
The court held that there was sufficient material before the trial court to believe that Dr. Reddi had absconded or was concealing himself so as to avoid execution of the warrant of arrest. The court also held that the petitioner and her children did not have an interest in the attached property in regard to their claim of maintenance against Dr. Reddi, as the husband's obligation to maintain his wife and children is a personal obligation independent of any property owned by him.
Issues: 1. Whether the order of proclamation declaring Dr. Reddi as an absconder was against the mandatory provisions of sections 82 and 83 of the Code of Criminal Procedure, 1973? 2. Whether the petitioner and her minor children had an interest in the attached property in regard to their claim of maintenance against Dr. Reddi?
Ratio Decidendi: 1. The court held that the order of proclamation was not against the mandatory provisions of sections 82 and 83 of the Code of Criminal Procedure, 1973, as there was sufficient material before the trial court to believe that Dr. Reddi had absconded or was concealing himself so as to avoid execution of the warrant of arrest. 2. The court held that the petitioner and her minor children did not have an interest in the attached property in regard to their claim of maintenance against Dr. Reddi, as the husband's obligation to maintain his wife and children is a personal obligation independent of any property owned by him.
Final Decision: The petition was dismissed.
( 1 ) BY this revision petition the petitioner challenges the correctness of the order dated 7th February, 1978, passed by Shri R. Dayal, Additional Chief Metropolitan Magistrate, New Delhi, whereby the learned Magistrate dismissed the application filed by the petitioner under section 84 of the Code of Criminal Procedure, 1973 (hereinafter called the Code ) seeking release of the property belonging to her husband Dr. G. J. Reddi, attached in pursuance of the provisions of section 83 of the Code.
( 2 ) FACTS relevant disposal of this revision petition are as follows. A case under section 3, 5, 6 and 9 of the Official Secret, Act read with section 120-B of the Indian Penal Code, was registered at police station Sriniwaspuri, vide F. I. R. No. 26 of 1977, against the petitioner, her husband, Dr. G. J. Reddi and one K. K. Sarin. Dr. Reddi was declared a proclaimed offender by the Court by an order dated 7th April, 1977. His property was ordered to be attached. The property accordingly was attached on 23rd and 30th April, 1977. The present petitioner moved an application under section 84 of the Code on her own behalf and on behalf of her two minor children for the release of the attached property of her husband. Dr. Reddi. The application, as noted above, was dismissed by Shri R. Dayal, Addl. Chief Metropolitan Magistrate, New Delhi, by his impugned order dated 7th February, 1978.
( 3 ) FEELING aggrieved by the aforesaid order the petitioner has filed the present petition in this Court.
( 4 ) A perusal of the record shows that the prosecution obtained nonbailable warrant from the Court of Shri P. K. Dham, Metropolitan Magistrate on 18th March, 1977. Service of the said warrant could not be effected because of the non-availability of Dr. G. J. Reddi. The prosecution accordingly filed a report on 1st April, 1977, returning the warrant unexecuted staling that Dr. Reddi was avoiding his arrest, with a prayer that coercive process under sections 82 and 83 of the Code be issued against him and that the property belonging to Dr. Reddi be attached and that a receiver for the attached property be appointed.
( 5 ) IN her petition before the trial Court the petitioner objected to the attachment of the property of her husband stating that she and her minor sons who at present are residing in Czechoslovakia, have vested interest in house No. B-5/23, Safdarjang Enclave, New Delhi, being the legal heirs of Dr. G. J. Reddi. She further stated that she had no place to stay in Delhi and in the circumstances had been compelled to stay in the Czechoslovakian Embassy. The said application was dismissed by the trial Court by the impugned order.
( 6 ) THE petitioner challenges the correctness of the said order, inter alia, on the grounds : (1) that the order of proclamation declaring her husband as an absconder is against the mandatory provisions of sections 82 and 83 of the Code and as such is had in law, (2) that the Court below wrongly came to the conclusion that her husband. Dr. G. J. Reddi, is an absconder ; (3) that the Court failed to appreciate that at the time accused Dr. Reddi left India on 10th February, 1977, he had no knowledge about the case in question and accordingly it was wrong to hold that he left India secretly in order to avoid the process of law; (4) that there was no material before the prosecution to connect the accused, Dr. Reddi with the alleged commisson of the offence; and (5) that it was worng to contend that challenge to the proclamation issued under section 84 of the Code could only be made by the accused person and that it was further wrong for the Court to hold that the. petitioner and her minor children have no right of maintenance from the property in question.
( 7 ) THE grounds sought to be urged challenging the correctness of the impugned order are wholly misconceived. According to sub-section (1) of secdon 82 of the Code, if any Court has reason to believe (whethere after taking evidence or not that
