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Himachal Pradesh High Court · body

2025 DIGILAW 25 (HP)

Budhi Singh Chauhan v. State of H. P.

2025-01-03

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for quashing of order dated 20.01.2021 regarding the attachment and sale of the petitioner’s property in the complaints titled Rajeev Sood versus Budhi Singh and Praful Kuthiala versus Budhi Singh. It has been asserted that the petitioner’s land situated in Khasra No. 393/1, 393/2/1, 391, 391/1/1, 393/3/1 in Up Mohal Chaedal, TehsilKotkhai, District Shimla was ordered to be attached in complaints titled Rajeev Sood versus Budhi Singh Chauhan and Praful Kuthiala versus Budhi Singh Chauhan, as the petitioner failed to appear before the Court and was declared a proclaimed offender. A civil suit No. 114 of 2011 was decreed against the petitioner ex-parte for Rs. 54,44,520/- along with pendente lite and future interest at the rate of 18 % per annum on 31.07.2013. This civil suit was compromised between the parties on 19.09.2014 by filing a joint application under Order 23 Rule 3 of CPC. He undertook to pay the outstanding amount on 14.10.2015. He paid Rs.12 lacs to respondent No. 2 and Rs. 3 lacs to respondent No.3. He could not pay the agreed amount. An execution petition No. 23 of 2016 was filed against him. OMPs No. 383 of 2018 and 759 of 2021 were filed in the execution petition No. 23 of 2016 between the same parties, and a prayer of attachment of the property was also made. The petitioner settled the dispute with the private respondents for Rs. 50 lacs; hence, he be permitted to dispose of the property bearing Khasra No. 393/1 to make the full and final payment and leave the property for his grandson and unmarried daughter. The petitioner’s grandson is ailing, and he requires financial and medical support. Petitioner’s daughter had borrowed Rs.16 lacs from the family and friends to settle a case with the UCO Bank. Hence, it was prayed that the attachment of the property be quashed in view of the compromise between the parties. 2. No reply was filed by the State. 3. I have heard Mr. Nitin Thakur, learned counsel for the petitioner and Mr. Lokender Kutleheria, learned Additional Advocate General for respondent No.1/State. 4. Mr Nitin Thakur, learned counsel for the petitioner, submitted that the matter had been compromised between the parties; therefore, the present petition be allowed, the order of attachment be quashed, and the petitioner be permitted to sell part of the property. Nitin Thakur, learned counsel for the petitioner and Mr. Lokender Kutleheria, learned Additional Advocate General for respondent No.1/State. 4. Mr Nitin Thakur, learned counsel for the petitioner, submitted that the matter had been compromised between the parties; therefore, the present petition be allowed, the order of attachment be quashed, and the petitioner be permitted to sell part of the property. 5. Mr Lokender Kutlheria, learned Additional Advocate General for respondent No.1/State, submitted that the petitioner has been declared a proclaimed offender, and he cannot seek relief from the Court without surrendering before the Court. He prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. Copies of the order sheets annexed to the petition show that the petitioner was arrayed as an accused and was declared a proclaimed offender by learned Additional Chief Judicial Magistrate, Court No.2 and by learned Judicial Magistrate First Class, Court No.4. 8. Sections 82 to 85 of the CrPC deal with the proclamation, attachment and restoration of the property. They read as under: 82. Proclamation for person absconding.— (1) If 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. (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 afÏxed 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 afÏxed 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. (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with and that the proclamation was published on such day. (4) Where a proclamation published under sub-section (1) is in respect of a person accused of an offence punishable under sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect. (5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub-section (4) as they apply to the proclamation published under sub-section (1).] 83. Attachment of property of person absconding. — (1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in writing, at any time after the issue of the proclamation, order the attachment of any property, movable or immovable, or both, belonging to the proclaimed person: Provided that where at the time of the issue of the proclamation, the Court is satisfied, by afÏdavit 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, it may order the attachment simultaneously with the issue of the proclamation. (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made, and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made, and it shall authorise the attachment of any property belonging to such person without such district when endorsed by the District Magistrate within whose district such property is situate. (3) If the property ordered to be attached is a debt or other movable property, the attachment under this section shall be made — (a) by seizure or (b) by the appointment of a receiver or (c) by an order in writing prohibiting the delivery of such property to the proclaimed person or to anyone on his behalf or (d) by all or any two of such methods as the Court thinks fit. (4) If the property ordered to be attached is immovable, the attachment under this section shall, in the case of land paying revenue to the State Government, be made through the Collector of the district in which the land is situate, and in all other cases — (a) by taking possession; or (b) by the appointment of a receiver or (c) by an order in writing prohibiting the payment of rent on delivery of property to the proclaimed person or to anyone on his behalf or (d) by all or any two of such methods, as the Court thinks fit. (5) If the property ordered to be attached consists of live stock or is of a perishable nature, the Court may, if it thinks it expedient, order immediate sale thereof, and in such case, the proceeds of the sale shall abide the order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of1908). 84. (6) The powers, duties and liabilities of a receiver appointed under this section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of1908). 84. Claims and objections to attachment.— (1) If any claim is preferred to, or objection made to the attachment of, any property attached under section 83, within six months from the date of such attachment, by any person other than the proclaimed person, on the ground that the claimant or objector has an interest in such property, and that such interest is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be allowed or disallowed in whole or in part: Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative. (2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or if the claim or objection is in respect of property attached under an order endorsed under sub- section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in which the attachment is made. (3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made: Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him. (4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive. 85. Release, sale and restoration of attached property.— (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. 85. Release, sale and restoration of attached property.— (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment. (2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government, but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit. (3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him. 9. Section 82 of the Code of Criminal Procedure empowers the Court to issue a proclamation for securing the presence of an absconding person. Section 83 empowers the Court to attach the property of the proclaimed offender. Section 84 deals with the objections to the attachment. Section 85 provides that the objection to the attachment has to be made within six months from the date of the attachment, and if the proclaimed person appears within the time specified in the proclamation, the Court can release the property. Section 84 deals with the objections to the attachment. Section 85 provides that the objection to the attachment has to be made within six months from the date of the attachment, and if the proclaimed person appears within the time specified in the proclamation, the Court can release the property. If the person does not appear, the property will be at the disposal of the State Government but will not be sold until the expiry of six months from the date of the attachment. The proclaimed person can appear within a period of two years and show that he had not concealed himself to avoid execution of the warrant or that he had no notice of the proclamation. 10. In the present case, the petitioner was declared a proclaimed offender. He has not challenged the order declaring him a proclaimed offender. It was held in Gaon Shiksha Samiti, Gram Sabha Sabhad, Auraiya v. State of U.P., 2003 SCC OnLine All 359 that when the basic order is not challenged, it is impermissible to challenge and set aside the consequential order. It was observed. “7. In C.P. Chitranjan Menon v. A. Balakrishnan , AIR 1977 SC 1720, the Hon'ble Supreme Court held that in the absence of a challenge to the basic order, subsequent consequential order cannot be challenged. 8. A similar view has been reiterated in Roshan Lal v. International Airport Authority of India, AIR 1981 SC 597 , wherein the petitions were primarily confined to the seniority list and the Apex Court held that challenge to appointment orders could not be entertained because of inordinate delay and in the absence of the same, validity of consequential seniority cannot be examined. In such a case, a party is under a legal obligation to challenge the basic order and if and only if the same is found to be wrong, consequential orders may be examined. 9. In H.M. Pardasani v. Union of India, AIR 1985 SC 781 , the Apex Court observed that if “petitioners are not able to establish that the determination of their seniority is wrong and they have been prejudiced by such adverse determination, their ultimate claim to promotion would, indeed, not succeed.” 11. In the present case, the basic order of proclamation has not been challenged; therefore, the consequential order of attachment cannot be challenged. 12. In the present case, the basic order of proclamation has not been challenged; therefore, the consequential order of attachment cannot be challenged. 12. It was held in Pal Singh v. State, 1954 SCC OnLine Punj 120 that the High Court cannot exercise the jurisdiction under Section 561-A of the Criminal Procedure Code (corresponding to Section 482 of Cr.P.C., 1973) to set aside the attachment. It was observed: “Now, the question arises regarding the remedy available to the petitioner after it has been held that the relief provided in section 89 of the Criminal Procedure Code was not available to him. In Hans Raj's case [ A.I.R. 1934 Lah. 987] , the Honourable Judges were asked to interfere under section 561-A of the Criminal Procedure Code, but they declined to do so in the peculiar circumstances of that case. I am, however, of the opinion that section 561-A, Criminal Procedure Code, can have no application to a case like the present one where it is necessary to set aside the orders made under sections 87 and 88, Criminal Procedure Code, as the High Court has ample powers under section 439 to interfere with the orders impeached and this is in consonance with the course adopted in the Punjab and Lahore cases mentioned above.” 13. It was held by the Bombay High Court in In re Gurunath Narayan Betgori 1924 SCC OnLine Bom 191 that the High Court should not exercise jurisdiction under 561A of Cr.P.C. to restore the property after the expiry of two years from the date of order. It was observed: - “The petitioner before us made an application to the Magistrate for the restoration of certain property, which was attached under Section 88 of the Cr PC. The facts relating to this attachment have been stated in the petition, and the case of the petitioner was that as he was absent from the village, he did not know anything about the attachment until he came back to the village about the time he made the application in 1923. Under Section 89 of the Cr PC, it is clear that the application for the restoration of property has to be made within two years from the date of the attachment. In the present case, the attachment was so far back as 1918, and the present application was made in 1923. Under Section 89 of the Cr PC, it is clear that the application for the restoration of property has to be made within two years from the date of the attachment. In the present case, the attachment was so far back as 1918, and the present application was made in 1923. The learned Magistrate rejected the application having regard to the provisions of Section 89 of the Cr PC. In appeal, the learned Sessions Judge upheld that order. 2. In support of the application to this Court, it is urged that we should exercise our inherent powers to secure the ends of justice under Section 561-A of the Cr PC. 3. We do not think that we could make any order which would conflict with the provisions of Section 89 of the Cr PC in the exercise of our inherent power to which a reference has been made. The order made by the Magistrate appears to be correct. As the application has not been made within two years from the date of the attachment, the Court has no jurisdiction to make the order which the applicant wants for the restoration of the property. 4. It is clear that his proper remedy is to apply to the Government at whose disposal the property is at present according to law. If the Government are satisfied that the allegations by the petitioner are correct and that the justice of the case requires that the property should be restored to him, the Government may allow a restoration of the property to the applicant, but we cannot help him, nor can we make any recommendation to the Government as to the merits of his application. We discharge the rule.” 14. Section 85 of CrPC provides that where the proclaimed person does not appear, the property shall be at the disposal of the government. It was laid down more than 150 years ago by Calcutta High Court in Toolseeram Bera vs Golam Abed (05.03.1883 - CALHC): MANU/WB/0070/1883 that when the property is at the disposal of the Government, the Government is free to dispose it and it is impermissible for the proclaimed person to claim the property after the expiry of two years. It was observed: - “1. It was observed: - “1. The property, which is the subject of the present appeal, was attached by the Magistrate under Section 172 of the Code of Criminal Procedure (Act X of 1872) in consequence of the proprietor Boidonath Dutt absconding when accused of committing a criminal offence. The date of the attachment is stated to be the 7th of August 1878. Subsequently, a third person who held a decree against Boidonath Dutt proceeded to execute it and attached the same property, which was sold to the plaintiff on the 15th of January 1879. Notwithstanding these proceedings, the attachment under the order of the Magistrate still continued, and it appears that, as Boidonath Dutt did not appear within the period specified in the proclamation issued under Section 171, the property at once became (to use the terms of Section 172) "at the disposal of Government." We understand by this expression that it came under the absolute control of the Government to dispose of or deal with it in whatever manner might seem most appropriate and convenient. In April 1880, the Magistrate, at a public sale, sold the rights of Government to the defendant. We have, therefore, in the present suit to determine which of these sales conferred the title to this property. 2. The Subordinate Judge has given the plaintiff a decree as against the defendant because, in his opinion, the defendant ought to have shown that the proclamation had been issued before the plaintiff's purchase and that the time specified in it for Boidonath's appearance expired before the plaintiff's purchase. 3. These reasons appear to us to be altogether unsound, for the Subordinate Judge should have presumed in accordance with Section 114(e) of the Evidence Act that the judicial acts of the Magistrate were regularly performed, that is to say that, unless the contrary was shown, the proclamation under Section 171 had been properly issued; that Boidonath did not appear within the time specified in the proclamation; and that the property having become at the disposal of Government, the Magistrate transferred it to the defendant. As regards the title of the defendant, it appears to us that, so long as the attachment by the Magistrate continued, no title could be conferred by any attachment subsequently made. As regards the title of the defendant, it appears to us that, so long as the attachment by the Magistrate continued, no title could be conferred by any attachment subsequently made. Section 172 provides that if the person to whom the property belongs does not appear within the specified period, his property (not his right, title and interest) shall be at the disposal of the Government, and from the terms of Section 173, it would appear that if the property has been sold, although the person to whom it belonged might be able to show to the satisfaction of the Magistrate that he was not at fault, and therefore not properly responsible for the sale, even then the sale is not to be set aside, and the property restored, but the proceeds of the sale are to be made over to the proprietor.” 15. A similar view was taken by the Bombay High Court in Dattaji Nana Patil vs Narayanrao Bhimrao Patil MANU/MH/0179/1922, wherein it was observed:- 1. The plaintiff in this suit seeks to recover certain property as the adopted son of one Nana, the adoption having been made to Nana by his widow, Laxmi, after his death. It appears that in 1908, the plaintiff committed a criminal offence and absconded. Measures were taken to secure his attendance under the Code of Criminal Procedure. A proclamation was issued on January 2, 1907, and an order for sale and confiscation of his property was made on June 22 of the same year. Under Section 89, it was necessary for the plaintiff to appear within two years and move that this order be set aside. He failed so to appear, and after certain further proceedings, an order of confiscation was made on October 20, 1911. The effect of that order clearly was to put an end to any title which the plaintiff might have had with regard to the confiscated property, and unless he has in some way acquired a title since that order, it is difÏcult to see how the present suit can be maintained.” 16. A similar view was taken by Punjab & Haryana High Court in Bachan Singh v. Punjab State, 1982 SCC OnLine P&H 8, and it was observed:- “14. From a perusal of S. 88, it is clear that it prescribes a complete Code for attachment, release and forfeiture of the property of a proclaimed offender. A similar view was taken by Punjab & Haryana High Court in Bachan Singh v. Punjab State, 1982 SCC OnLine P&H 8, and it was observed:- “14. From a perusal of S. 88, it is clear that it prescribes a complete Code for attachment, release and forfeiture of the property of a proclaimed offender. Sub-section (1) empowers the Court to order attachment of the property, both movable and immovable, of the proclaimed offenders. Sub-section (6A) enables other persons to file claims, and subsections (6B) and (6C) empower the Court to adjudicate upon them. Sub-section (6D) entitles them to file a suit in case their claims have been rejected wholly or partly. Under sub- section (6D), even the proclaimed offender can claim the property under certain conditions. Thereafter, sub-section (7) authorises the State Government to deal with the property attached under the foregoing provisions. It provides that if the proclaimed offender does not appear within the period mentioned in the proclamation, the attached property shall be at the disposal of the State Government. The words “at the disposal of the State Government” are important. According to the Shorter Oxford English Dictionary (3rd Edition), the word “disposal” means power or right to dispose of. Thus, a right is vested in the State Government to sell the property and retain the sale price. However, the property cannot be sold for a period of six months from the date of attachment or in case any claim is preferred or objection made under sub-section (6) till that has been decided. 15. Under section 89 of the Act, the proclaimed offender can claim back the property or, if it has been sold, its net proceeds after meeting the costs incurred if he appears within two years from the date of attachment and shows to the satisfaction of the Court that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and that he had no notice of the proclamation. No other person can claim back the sale price. 16. It is evident from the above sections that the property of the proclaimed offender is not attached for his life only but is forfeited to the State. If that was not so, the State would not have been authorised to sell it absolutely after the expiry of the specified period. No other person can claim back the sale price. 16. It is evident from the above sections that the property of the proclaimed offender is not attached for his life only but is forfeited to the State. If that was not so, the State would not have been authorised to sell it absolutely after the expiry of the specified period. I am, therefore, of the view that when the State becomes entitled to sell the property of the proclaimed offender of which he was the absolute owner, he loses all interest therein, and his heirs cannot claim the property after his death.” 17. In view of the above, the petitioner cannot claim the release of the property attached by order of the Court without getting the order set aside, when the property is at the disposal of the Government; hence, the present petition fails, and the same is dismissed. 18. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.