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2004 DIGILAW 538 (ORI)

BHUBANESWAR SINGH DEO v. STATE OF ORISSA

2004-12-13

R.N.BISWAL

body2004
JUDGMENT : R.N. Biswal, J. - The order dated 22.6.2004 passed in G.R. No. 218 of 2004 wherein the J.M.F.C., Khariar issued proclamation u/s 82 of the Code of Criminal Procedure against the Petitioner and his wife and simultaneously ordered for attachment of their properties is under challenge in this Misc. case u/s 482 Code of Criminal Procedure 2. The fact giving rise to this Misc. case succinctly stated is that on the report of the O.I.C. Khariar Police Station a case under Sections 342/324/34 I.P.C. against the Petitioner (3) and his wife, Puspalata Singh Deo was registered by the J.M.F.C. Khariar. Subsequently on the prayer of the Investigating Officer, Section 326 I.P.C. read with Section 23 of the Juvenile Justice (Care and Protection of Children) Act 2000 was added to the same. On 18.6.2004 on the prayer of the Investigating Officer N.B. Ws. of arrest were issued against the accused persons. On 22.6.2004 processes u/s 82 and 83 Code of Criminal Procedure were directed to be simultaneously issued against them with direction to appear before the aforesaid Court or at Khariar Police Station on or before 29.6.2004; on which date since the Magistrate did not receive any intimation either regarding appearance of the accused persons at the police station or regarding execution of the processes under Sections 82 and 83 of the Code of Criminal Procedure adjourned the case to 22.7.2004 awaiting for the same. On receipt of D.R. No. 916 dated 24.6.2004 from the O.I.C., Khariar Police Station, wherein it was intimated that four Buses bearing Registration Nos. OR-08-A-7707, OR-08-A-5039, MP-23-0A-2144, ORH-3383 and one Indica Car bearing No. CG-04-B-3205 belonging to the accused persons were seized by him, the case record was put up on 13.7.2004 and the fact of seizure was reflected in the order-sheet. The Petitioner filed a petition u/s 85 of the Code of Criminal Procedure before the courts below for release of the seized vehicles in his favour but the same was turned down vide order-dated 10.8.2004. Instead of challenging this order the Petitioner challenges the order-dated 22.6.2004 where proclamation and order of attachment were ordered to be issued under Sections 82 and 83 of the Code of Criminal Procedure simultaneously, as mentioned earlier. 3. Learned Counsel for the Petitioner submits that the very order of issuance of proclamation being illegal the subsequent orders including attachment of the vehicle are also illegal. 3. Learned Counsel for the Petitioner submits that the very order of issuance of proclamation being illegal the subsequent orders including attachment of the vehicle are also illegal. According to him as required u/s 82 of the Code of Criminal Procedure one month's time for appearance of the accused persons before the court below or the police station as the case may be, from the date of publication of the proclamation should have been given but proclamation order u/s 82 of the Code of Criminal Procedure and the order of attachment u/s 83 Code of Criminal Procedure were issued on 22.6.2004 fixing the date to 29.6.2004 for appearance of the accused persons. Per contra the learned Addl. Standing Counsel submits that even though in the order dated 22.6.2004 the court below fixed the date of appearance of the accused persons to 29.6.2004 but in the subsequent order dated 29.6.2004 he extended the date of appearance of the accused persons to 22.6.2004. So from the date of the proclamation order u/s 82 Code of Criminal Procedure and attachment order u/s 83 of the Code of Criminal Procedure i.e. on 22.7.2004 one month time was given to the accused persons for their appearance. As such there is no illegality in the proclamation order u/s 82 Code of Criminal Procedure Section 82(1) Code of Criminal Procedure reads as follows: IT any court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing' himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at 'a specified time not less than thirty days from the date of publishing such proclamation. (Emphasis supplied). 4. As per this provision the one month time has to be reckoned from the date of publishing the proclamation and not from the date of its issuance. So even if it is held that the appearance of the accused persons including the Petitioner was extended up to 22.7.2004 still then since the order for issuance of processes u/s 82 and 83 Code of Criminal Procedure was passed on 22.6.2004 and as such one month time from the date of publication was not given, the order for issuance of process u/s 82 Code of Criminal Procedure is bad in law. The accused persons (absconders) are not bound to obey such an order. The order dated 22.6.2004 being bad in law the subsequent orders passed thereto were also illegal. 5. Section 82(2) Code of Criminal Procedure reads as follows: (2) The proclamation shall be published as follows : (i) (a) It shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides; (b) It shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village; (c) a copy thereof shall be affixed to some conspicuous part of the Court-house (ii) The Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides. In the present case there is nothing to show in the record as to whether in fact the proclamation was published in the manner as envisaged in the aforesaid provision. As per Section 82(3) a statement in writing by the Court issuing proclamation stating that the proclamation was duly published is sufficient to show about the fact of publication of such proclamation. But the record is silent in this regard. The requirement as to publication in accordance with Sub-clauses (a), (b) and (c) of Clause (i) of Sub-section (2) is mandatory and non-compliance thereof would render the proclamation null and void. 6. Furthermore, as mentioned earlier proclamation u/s 82 of the Code of Criminal Procedure and the order of attachment u/s 83 Code of Criminal Procedure were issued simultaneously. As envisaged under the proviso to Sub-section (1) of Section 83 of the Code of Criminal Procedure such simultaneous orders can be passed if the court is satisfied by affidavit or otherwise that the person in relation to whom the proclamation is to be issued. (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the court. 7. (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the court. 7. In the case at hand there is nothing to show that the Petitioner or his wife was about to dispose of the whole or any part of their properties or that they were about to remove the same from local jurisdiction of the court; so simultaneous issuance of the orders of proclamation and attachment were illegal which cannot be cured u/s 460 Code of Criminal Procedure 8. Under such circumstances the Misc. case is allowed and the order dated 22.6.2004 issuing order of proclamation and attachment under Sections 82 and 83 of the Code of Criminal Procedure respectively are quashed. The orders passed thereafter including the order of attachment of the aforesaid vehicles having been rendered illegal are also quashed. The seized vehicles be released in favour of the Petitioner. Final Result : Allowed