Attachment of property to precede valid proclamation u/s 87.

The First Class Magistrate, Koppal, by his order passed on an application presented by the petitioner under section 89 of the Criminal Procedure Code, 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.

2. The facts necessary for a decision are: that in C.C. No. 21 of 1968 on the file of the said First Class Magistrate, this petitioner was one of the accused. The charge was under section 302 of the Indian Penal Code. As it was reported that the petitioner was absconding and the Magistrate felt satisfied, he issued a proclamation under section 87 of the Criminal Procedure Code. The proclamation was issued on 17th October, 1968. It may be mentioned here itself that by the said proclamation, the Magistrate called upon the petitioner to appear in his Court within 29th October, 1968, to answer the complaint.

3. As the petitioner did not appear in the said Court, the Magistrate proceeded to take action under section 88 of the Criminal Procedure Code and attached the properties in question.

4. 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 sections 87 and 88 of the Criminal Procedure Code are null and void and therefore, he was entitled to return of the attached properties.

5. 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 C.C. No. 21 of 1968 and that he has not absconding. The learned Magistrate has disbelieved the said evidence. In regard to release of properties, he has relied upon the decision reported in Palsingh v. The State1. 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 section 89 of the Criminal Procedure Code.

6. The proclamation was issued on 17th October, 1968. It was proclaimed therein that the petitioner was to appear before the lower Court within 29th October, 1968. Section 87(1) of the Criminal Procedure Code mandatorily lays down that such proclamation, requiring an absconding person to appear at a specified place and at 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 section 87 of the Criminal Procedure Code. In Gurappa Gugal v. State of Mysore2, this Court has held that the provision of section 87 of the Criminal Procedure Code 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 section 537 of the Criminal Procedure Code. 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 seen 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.

7. In Palsingh v. The State1, it is held tha