1973 (2) TMI 140 - HC - Indian Laws

Summary

Issues Involved:
1. Non-conformance to the procedure established by law under Section 87(1) and 87(2) of the Criminal Procedure Code (CrPC).
2. Merits of the impugned order dated 6-12-1972 under Section 88(6-A) CrPC.
3. Objection regarding the maintainability of the Rule based on the provisions of Section 88(6-D) CrPC.

Detailed Analysis:

1. Non-conformance to the Procedure Established by Law under Section 87(1) and 87(2) CrPC:
- Section 87(1) CrPC: The claimant-petitioner argued that the magistrate lacked "reason to believe" that the accused had absconded or was concealing himself to evade arrest, a prerequisite for issuing a proclamation. The magistrate's simultaneous issuance of a fresh warrant of arrest and a proclamation and attachment order indicated a lack of such belief, thus violating Section 87(1) CrPC.
- Section 87(2) CrPC: The publication of the proclamation did not conform to the mandatory requirements. The process-server's report indicated that the proclamation was pasted on the door of Kailash Stores and displayed on the thana's notice board, but there was no evidence that it was affixed to a conspicuous part of the courthouse, violating Section 87(2) CrPC.
- Court's Finding: The court agreed with the petitioner, finding that the mandatory conditions under Section 87(1) and 87(2) CrPC were not met, thereby rendering the orders of proclamation and attachment illegal and improper.

2. Merits of the Impugned Order Dated 6-12-1972 under Section 88(6-A) CrPC:
- Petitioner's Argument: The petitioner claimed to be a bona fide purchaser of the stock-in-trade and had been running the business since 10-3-1972. He argued that the seizure of the shop and goods was unwarranted.
- State's Argument: The State contended that the claim-petition was not maintainable and that the procedure established by law had been followed.
- Court's Decision: Given the findings on the procedural non-conformance, the court did not delve into the merits of the claim and left it open for the lower court to decide.

3. Objection Regarding the Maintainability of the Rule Based on Section 88(6-D) CrPC:
- State's Argument: The State argued that the petitioner should proceed under Section 88(6-D) CrPC, which provides for instituting a suit within one year to establish the claimed right, rather than seeking revision under Section 439 CrPC.
- Court's Finding: The court held that Section 88(6-D) CrPC provides an alternative remedy and does not bar the High Court's revisional jurisdiction or inherent jurisdiction. The High Court's powers remain unfettered, and the petitioner was entitled to seek revision.

Conclusion:
The High Court made the Rule absolute, setting aside all orders passed from 7-7-1972, including the order dated 6-12-1972, due to non-conformance to the procedure established by law. The case was remanded to the lower court for expeditious disposal by another magistrate from the stage reached on 7-7-1972, in accordance with the law and the observations made. The records were directed to be sent back as early as possible.