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TMI Blog1957 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 149, I P. C. which was pending in the Court of the First Glass Magistrate, Sanchore. It was reported to the Magistrate that the petitioner was absconding. Thereupon a proclamation under Section 87, Criminal P. C. was drawn up and issued against him, on the 27th January , 1954. By this proclamation, the accused was directed to present himself in the Magistrate's Court within 30 days of the date of the proclamation. The Magistrate also issued a warrant of attachment under Section 88, Criminal P. C. on the same date and in pursuance thereof, certain cattle of the petitioner was attached. This cattle was claimed by petitioner's son to be his own and the petitioner also seems to say so but the point whether it belongs to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m by the Magistrate was not in conformity with the mandatory provisions of Section 87, Cr. P. C. and was, therefore, a nullity and further that any attachment of the cattle under such circumstances could not be supported in law and should be set aside, and the cattle be restored. 4. I have carefully considered this aspect of the case, and heard the learned Government Advocate, and have arrived at the conclusion that the argument is not without force. Sections 87 and 88, Cr. P. C. make certain provisions for compelling the attendance of an accused or for that matter a witness who may be found to be absconding and evading his presence in Court. Section 87 provides that in the circumstances mentioned in the section a proclamation can be iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a proclamation may also at any time order the attachment of any property, movable or immovable belonging to the proclaimed person. Then the important sub-sections are (6E) and (7) of Section 88. Sub-section (6E) provides that where the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment- Sub-section (7) provides for those cases where the proclaimed person fails to appear within the time specified in the proclamation, and lays down that in such a case, the property under attach-ment shall be at the disposal of the State Government. Then we come to Section 89 which provides for the restoration of the attached property to a proclaimed person. That se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Emperor v. Multan Singh AIR 1919 Lah 57. In this earlier case, the Bench held that as the requirements as to publication prescribed under Clauses (a) and (c) of Sub-section (2) of Section 87 were not complied with and as the date fixed for the appearance of the petitioner was less than 30 days from the date of publication of the proclamation that was not in accordance with law, and, therefore, the subsequent proceedings were invalid. The view taken in AIR 1934 Lah 987 has not been followed in subsequent decisions of that Court. Reference may be made in this connection to Mt. Javvai V. Emperor, AIR 1942 Lah 214 and Jagdev Khan v. Emperor AIR 1948 Lah 151 Teja Singh J. in Jagdev Khan's case (D) relied on the Bench decision in AIR 191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used the proclamation. It was drawn up on the 27th January 1954. It called upon the petitioner to appear in Court within 30 days of the date of the proclamation. This is a clear violation of the terms of Sub-section (1) of Section 87 which requires that a proclamation should specify a time not less than 30 days from the date of the publication of the proclamation. The error so far as this aspect of the case is concerned was of a three-fold character. In the first place, no precise date was fixed. In the second place the accused was asked to appear within 30 days of a certain point of time, and, thirdly, this specified point of time was also wrongly fixed as it could not have been fixed with reference to the date of the issue of the procl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) that he had not such notice of the proclamation as to enable him to attend within the time specified therein, and, that a plea as to the illegality of the proclamation cannot be held to fall within the four corners of Section 89. Kapur J., as he then was, in A I R 1955 Pun 18 seems to hold a contrary view. It seems to me, however, unnecessary to So into that controversy. So far as the powers of this Court are concerned, the view has been mor. or lets uniformly taken that, apart altogether from the provisions of Section 561A which may or may not be capable of being invoked according to the exigencies of a particular case this Court would have ample jurisdiction under Section 439, Criminal P. C. to pass a suitable order having regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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