ORDER(ORAL)

24.05.2024

1) The petitioner has challenged order dated 01.06.2023 passed by learned Judicial Magistrate 1st Class (Sub Registrar), Srinagar, whereby the learned Magistrate has, in exercise of his power under Section 83 of the Cr. P. C, directed Deputy Commissioner, Srinagar, to attach the whole or any part of the immovable property as well movable property of accused Sheikh Ghulam Qadir, respondent No.2 herein, and to seize bank accounts of the said accused in the name of Firdous Educational Institute, Zakura, Srinagar, maintained with J&K Bank, Branch Habak Srinagar, and J&K Bank, Branch Malabagh Srinagar.

2) Heard and considered.

3) It appears that a complaint for offence under Section 138 of the Negotiable Instrument Act was filed by respondent No.1 against respondents No.2 and 3 before the learned Trial Magistrate wherein the learned Trial Magistrate issued process against the said respondents.

4) It seems that during trial of the complaint, the accused stopped appearing in the case which compelled the learned Trial Magistrate to issue non-bailable warrants against them. It was reported by the executing officer that both the accused have absconded to Delhi and cannot be arrested. Therefore, in terms of order dated 27.12.2022, the learned Trial Magistrate declared the accused as absconders and proclamation in terms of Section 82 of the Cr. P. C was directed to be issued. It also appears that the aforesaid order came to be challenged by respondent No.3 before this Court and vide order dated 17.02.2023 passed by this Court, the said accused was directed to appear before the learned Trial Magistrate. The learned Trial Magistrate was further directed to defer the proceedings of proclamation and attachment of property of the said accused. Accordingly, orders dated

27.12.2022 and 02.02.2023 were recalled.

5) The learned Trial Magistrate vide impugned order has proceeded against the accused/respondent No.2 herein by holding that the order dated 17.02.2023 passed by the High Court is only with respect to accused No.2(respondent No.3 herein).

6) Learned Senior counsel appearing for the petitioner has vehemently contended that orders dated 27.12.2022 and 02.02.2023 have been recalled as a whole and, as such, the aforesaid observation of the learned Trial Magistrate is not in accordance with law. On this basis, it has been contended that once the order regarding issuance of proclamation against the accused was recalled, the impugned order whereby the attachment of properties in question has been directed is not sustainable in law.

7) The contention of learned Senior counsel appearing for the petitioner appears to be without any merit for the reason that this Court was seized of the matter relating to recall of declaration of respondent No.3 as proclaimed offender and not with regard to recall of the said proceedings to the extent of respondent No.2 herein. Therefore, the order passed by the High Court was rightly interpreted by the learned Magistrate to be applicable to the case of respondent No.3 only and not to case of respondent No.2.

8) On merits, learned Senior counsel has contended that the property that has been directed to be attached belongs to the petitioner and not to accused-respondent No.2, as such, it was not open to the learned Magistrate to pass the impugned order of attachment. This is being disputed by learned counsel appearing for respondent No.1- complainant. In other words, the petitioner is laying his claim on the attached property.

9) Section 84 of the Cr. P. C provides the procedure for dealing with the claims and objections to attachment. It reads as under:

84. Claims and objections to attachment.—(1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest