SHIVALINGAPPA v. STATE OF KARNATAKA — 1976 DIGILAW 204 (KAR)

( 1 ) THESE two criminal revisions are directed against the judgment of the Sessions Judge, Raichur, in Crlapps. 1 and 2 of 1976 confirming in appeal the order of the Munsiff-Judicial Magistrate First Class, Yelburga, wherein the attachment of the properties of the petitioners accused under s. 83 of the Crlpc, 1973 has been maintained and the appeals filed by the petitioner accused under S. 86 of the Code have been dismissed. In a criminal case involving 14 accused including the two petitioners under s. 302 IPC, it appears, warrants for arrest of the accused were issued. Presumably such warrants could not be served and a case was made out that the accused were absconding or were concealing themselves. Therefore under S. 82 proclamations were issued on 1-8-1975. Thereafter on 10-9-1975 the learned Magistrate found that accused No. 10 and accused No. 11 along with others were absent, although the proclamations issued against them were " received after publication according to law". Thereby he ordered for the attachment warrants to be issued, for the movable and immovable properties of these accused. Being dissatisfied with that order, the petitioners I accused filed the aforementioned two appeals before the learned Sessions Judge. Since the appeals have been dismissed they have come up in the present two revisions. ( 2 ) A common question of law and fact arises in both the revisions and therefore the same can be disposed of by a single judgment. ( 3 ) THE learned Counsel for the petitioners accused contended in the foremost that the very order of attachment of properties made by the learned Magistrate under Section 83 was illegal and unenforceable. The argument was, that in the language of S 83 of the New Code the words "for reasons to be recorded in writing" are introduced and its main object is the application of mind by the learned Magistrate, justifying the necessity of making an order of attachment. The learned Counsel proceeded to argue, that the reasons to be recorded in writing were necessarily to indicate that ,the accused absconded or concealed themselves or that they had such notice of proclamations as to enable them to attend within the time specified therein. Unless that satisfaction was reached by the learned Magistrate, he could not make an order for the attachment of the property. Unless that satisfaction was reached by the learned Magistrate, he could not make an order for the attachment of the property. As against this argument, the learned State public Prosecutor contended that since the petitioners accused chose to proceed under sub-sec (3) of S. 85, they had to confine their plea within the meaning of that sub-section, namely, that they can only succeed provided they established that they did not abscond or conceal themselves or had no such notice of such proclamation so as to enable them to attend within the time specified therein. The learned State Public Prosecutor further argued that the burden lay upon the petitioners accused to prove all these conditions. Unless they did that, the Counsel proceeded, they could not get the attachment order set aside. In that connection the learned Counsel for the petitioners'accused brought to my notice two decisions of this Court reported in Gurupa Gugal v. State of Mys, (1968 (2) Myslj. 630. and in Siddanagowda v. State of Mys, ( 1971 (2) Myslj. 486 , in both these cases the proclamation issued was found shorter in duration. As such it was held that the proclamation was illegal and the Court set aside that proclamation in exercise of its revisional power under S. 439 of the then Crlpc. Taking assistance from these two decisions, the learned Counsel for the petitioners accused contended that similarly the attachment order can be held to be illegal and the Court can set aside that order, if not in exercise of revisional jurisdiction, then under its inherent jurisdiction with reference to S. 482 of the present Code. At first we have to see, if the order of attachment can be considered to be illegal. ( 4 ) THE order dt. 10-9-1975 made by the learned Magistrate is in the following terms :"state through APP. For appearance of accused. In this case proclamation issued against A10 to A14 has been received after publication according to law. Today the accused 10 to 14 are called out, they are not present before the Court though the case is fixed today for their appearance. CPI Kushtagi has submitted list of properties of the accused 10, 11 and 14. He has requested for time for supply of properties particulars of A12 and A13. Time granted. Order is passed for issue of AW. of the properties of the accused 10, 11 and 14. CPI Kushtagi has submitted list of properties of the accused 10, 11 and 14. He has requested for time for supply of properties particulars of A12 and A13. Time granted. Order is passed for issue of AW. of the properties of the accused 10, 11 and 14. NEW of A10 to 14 are also returned unexecuted. Re-issue NEW against A10 to A14. The case is adjourned for return of AW and also supply of the properties particulars of A12 and a13 and also for appearance of the accused to 30-9-1975. Sd-JMFC, Yelburga, 10-9-1975. "it is manifest the learned Magistrate satisfied only two conditions before he issued the attachment order- (i) the publication of the proclamation according to law and (ii) the petitioners accused not being present before the Court. There is absolutely no observation as to the facts of (the petitioners accused having absconded or concealed themselves or the proclamations served upon them within sufficient time so as to enable them to attend the Court. The satisfaction as to these conditions, within the scheme of the Code is required at both the stages, firstly under S. 82 when the proclamations are issued and secondly, under S. 83 when attachment of properties is ordered. It is for that reason that the Section is amended and the words "for reasons to be recorded in writing" have been introduced in s. 83. The attachment of properties is decidedly a drastic step which follows the proclamation issued under S. 82. While ordering for the attachment a Magistrate has to apply his mind once again on all the facts authorising him to issue the proclamation and especially the fact that the notice of the proclamation was served upon the accused within such time so as to enable him to attend the Court on the date fixed. If the Magistrate did not apply his mind to these conditions and nevertheless issued the attachment warrant, the order made under S. 83 can hardly be considered a valid order. As such the argument of the learned counsel that the attachment order in this case was illegal must be sustained. ( 5 ) THE learned State Public Prosecutor then submitted, that on the material on record, perhaps, this Court would be in a position to decide as to whether the learned Magistrate had sufficient material before him to issue the order of attachment. ( 5 ) THE learned State Public Prosecutor then submitted, that on the material on record, perhaps, this Court would be in a position to decide as to whether the learned Magistrate had sufficient material before him to issue the order of attachment. I do not think, the said enquiry can be resorted to, for the simple reason that so many questions of fact are bound to arise and this Court cannot decide questions of fact while exercising revisional jurisdiction. The order dt. 10-9-1975, on the face of it, is illegal and can easily be set aside. This can be done either in exercise of revisional jurisdiction under Section 401 or in exercise of inherent powers under Sec. 482. It is admitted on behalf of the prosecution that these accused have since then surrendered and they are standing trial. Therefore, in my opinion, the order of attachment made under S. 83 being inherently defective has got to be set aside. ( 6 ) THE two revisions are, therefore, allowed and the order dt. 10-9-75 issuing attachment warrant of the properties belonging to the petitioners accused stands set aside. --- *** --- .