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2003 DIGILAW 74 (HP)

S. K. Puri v. Des Raj Bhandhari

2003-04-04

M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure (hereafter referred to as 'the Code') is directed against the orders dated 12.12.2002 and 16/1/2003 passed by the learned Sub-Divisional Judicial Magistrate, Nalagarh in complaint Case No. 361/2 of 2000. 2. Brief and admitted facts of the case are that the respondent has filed a complaint against the petitioners i.e. under Section 406 of the Indian Penal Code. The complaint was listed for consideration of charge on 12.12.2002. On the said date, the accused petitioners (hereafter referred to as 'the petitioners') were not present and their counsel Mr. Rajiv Sharma, Advocate, moved an application for exemption of petitioner No. 1 who represents petitioner No. 2 also from appearance on the ground that he had to go to Jammu in order to attend a marriage. The learned trial Magistrate, however, declined the exemption prayed for on the ground that to attend a marriage, is not a circumstance beyond the control of the petitioner. Therefore, the personal bonds and surety bonds of the petitioners were forfeited and proceedings under Section 446 of the Code were ordered to be initiated. Non-bailable warrants to secure the presence of the petitioners were ordered to be issued and made returnable for 16.1.2003 vide ordered dated 12.12.2002. Order dated 16.1.2003 reveals that none was present when the case was called and non-bailable warrants issued against the petitioners were received back with the report that the petitioner had absconded. Therefore, a proclamation was ordered to be issued for presence of the petitioners on 4.3.2003 and warrant of attachment of the property was also ordered to be issued. Being aggrieved by these two orders, the petitioners have filed the present revision petition. 3. I have heard the learned counsel for the petitioners and the complainant who has put in appearance in person and have also gone through the records. 4. There is no dispute that the application for exemption from personal appearance was filed on behalf of the petitioners on 12.12.2002 on the ground that the petitioner S.K. Puri was to attend the marriage of his close relation at Jammu. In my view, the application did not merit dismissal in view of the ground for exemption from personal appearance. 4. There is no dispute that the application for exemption from personal appearance was filed on behalf of the petitioners on 12.12.2002 on the ground that the petitioner S.K. Puri was to attend the marriage of his close relation at Jammu. In my view, the application did not merit dismissal in view of the ground for exemption from personal appearance. In any case, issue of non-bailable warrants and initiation of proceedings under Section 446 of the Code was not justified in the given circumstances of the case. 5. The non-bailable warrants issued to the petitioners and made returnable for 16.1.2003 were received back with the report that petitioner S.K. Puri was not present at the given address and had sold that house two years before and that his present address was not known. Evidently, on the basis of this report it could not be held that the petitioner had absconded with a view to evade the trial. as concluded by the learned trial Magistrate. Selling a house once occupied by an accused and then shifting to some other residence is not necessarily an act of absconding or concealing himself so that the warrant issued against him may not be executed. 6. The other illegality committed by the learned trial Magistrate while passing the impugned order dated 16.1.2003 is that, apart from issuing the proclamation for appearance of the petitioners, he ordered issue of warrant of attachment of property also. 7. It may be pointed out that even in a case where the Court has reasons to believe that the accused had absconded or is concealing himself so that the warrant may not be executed, the first step to be taken to secure his presence, is issue of proclamation under Section 82 of the Code. No doubt, under Section 83 of the Code, Court has the power to order attachment of movable or immovable property or both belonging to the proclaimed person to secure his presence. However, ordinarily the Court will order attachment of the property of the absconder only after the issue of the proclamation, that too after recording its reasons for doing so. There are only two exceptions to this general rule under which a Court can order attachment of the property simultaneously with the issue of the proclamation. However, ordinarily the Court will order attachment of the property of the absconder only after the issue of the proclamation, that too after recording its reasons for doing so. There are only two exceptions to this general rule under which a Court can order attachment of the property simultaneously with the issue of the proclamation. Such exceptions are that the court must be satisfied on affidavit or otherwise that the person in relation to whom the proclamation is to be issued is about to dispose of whole or any part of his property or is about to remove whole or any part of his property from the local jurisdiction of the Court. 8. In the case in hand, the learned trial Magistrate directed attachment of the property of the petitioners simultaneously with the issue of the proclamation. However, he has not recorded any reason for adopting such a course and there was no material before it to indicate that the petitioners were about to dispose of the whole or any part of their property or were about to remove the whole or any part of their property from the local jurisdiction of the Court. Even oral request on behalf of the complainant who himself was absent on 16.1.2003 was not made for orders of attachment simultaneously with the proclamation. 9. In view of the above, the learned trial Magistrate has not exercised the jurisdiction vested in him legally and the impugned orders have resulted in injustice to the petitioners. Therefore, the impugned orders cannot be sustained. 10. As a result, this petition is allowed and the impugned orders are set aside. 11. The parties are directed to appear before the trial Court on 2.5.2003 when the trial court will proceed further with the complaint in accordance with law. The petitioners, however, are directed to file their present correct and complete address (s) in the trial Court on their appearance.