An illegal proclamation under Section 87, CrPC, vitiates the attachment proceedings under Section 88, CrPC, and the person whose property is attached is entitled to its restoration.

Bishan Narain, J.

1. The only point that requires consideration in this case is whether the petitioner ig entitled to the restoration of his property which was attached under Section 88. Criminal Procedure Code.

2. The present petitioner was wanted in a murder case and a proclamation under Section 87, Criminal Procedure Code, was issued on 13th Juno 1950 ordering him to appear before tha Court within 30 days from the date of its issue. The proclamation was published on 29th of June 1950. On the date the proclamation was issued, i.e., 13th of June 1950 the Court also ordered attachment of moveable and immovable property under Section 88, Criminal Procedure Code. His moveables were attached on 29th June 1950 and were sold on 12th March 1951 for Rs. 178/7/-while his immovable property was attached on 30th August 1950 and is still under attachment. It appears that the petitioner voluntarily surrendered himself or was apprehended and brought before the Court on 15th April 1951. He was tried under Section 302, Indian Penal Code, but was acquitted by the Sessions Judge by his order dated 12th April 1952. On 21st of April 1951 the petitioner applied under Section 39, Criminal Procedure Code, for restoration of his attached property but the trial Court after hearing evidence came to the conclusion that the conditions laid down in Section 89, Criminal Procedure Code, for restoring the attached property were not satisfied in this case and therefore the petitioner could not get any relief from the Criminal Courts and suggested that his remedy lies in a Civil Court- or in the High Court under Section 439, Criminal Procedure Code. His appeal was also dismissed by the learned Additional Sessions Judge, Fcrozepur. The petitioner filed the present revision petition which came up for hearing before Kapur J. who finding a conflict in Lahore decisions referred the matter tc the Division Bench and it has come before us under the orders of Honourable the Chief Justice.

3. The learned counsel for the petitioner urged before us rather half-heartedly that the findings of the lower Courts that the petitioner had absconded and that he had the notice of proclamation under Section 87 are erroneous but no cogent reason has been advanced for setting aside these findings. Therefore the petitioner cannot get the attached property restored under Section 89, Criminal Procedure Code, as under that Section no order for restoration can be passed unless the two conditions laid down in the Section are proved to the satisfaction of the Court and without such a proof the learned Magistrate has no jurisdiction to set aside the orders of attachment even if the attachment was irregularly made or even if proclamation under Section 87 was not issued or published in accordance with its provisions.

4. The main point argued by the learned counsel for the petitioner was that the proclamation had not been published in accordance with the provisions of Section 87 and therefore the attachment proceedings under Section 88 were vitiated with the result that the order of attachment being invalid must be set aside and the property restored to the petitioner. It was contended that once it comes to the notice of this Court that the order of attachment was illegal it has ample power under Section 439 to set it aside and pass the consequential order directing the delivery of the property or its sale price to the petitioner. Now Section 87 (1) reads:

"If any Court has reason to believe (whether after taking evidence or not) 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 such proclamation."

This Section must be strictly construed as the failure to obey the orders in this Section has penal consequences. Admittedly, in the p