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Madivalappa Channappa Chowdary Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ189
AppellantMadivalappa Channappa Chowdary
RespondentState of Mysore
Excerpt:
.....on or before 2-3-1966. thereafter the magistrate being satisfied that the petitioner was absconding and concealing himself to avoid the warrant and had failed to appear, made an order directing attachment of the property of the petitioner as per the provisions of section 88 of the crl......nor was he aware of the attachment of his properties. section 87 provides for proclamation for person absconding; section 88 provides for attachment of property of a person absconding section 89 which is relevant in this case, provides that '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 (7) of section 88 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.....
Judgment:
ORDER

C. Honniah, J.

1. The only point that requires consideration in this case is whether the petitioner is entitled to the restoration of his property which was attached under Section 88 of Cr. P. C.

2. The petitioner was wanted in a case of arson and looting of foodgrains along with many others. The police filed a charge-sheet after investigation against 39 persons including the petitioner for offences under Sections 147, 343. 428, 437, 461 and 396 of the IPC. showing the petitioner as absconding. Out of them 3 accused were convicted and others were acquitted. On appeal to the High Court those who had been convicted also were acquitted. Before the trial commenced a warrant was issued for his arrest and in spite of extension of time and efforts made he could not be traced. On 30-1-1966 a proclamation was issued under Section 87 (3) of Crl. P. C. calling upon him to appear on or before 2-3-1966. Thereafter the Magistrate being satisfied that the petitioner was absconding and concealing himself to avoid the warrant and had failed to appear, made an order directing attachment of the property of the petitioner as per the provisions of Section 88 of the Crl. P. C. Within 2 years after the attachment, viz. 23-1-1968 the petitioner appeared before the Magistrate on which date he was enlarged on bail. On 4-3-1968, the petitioner made an application under Section 89 of the Crl. P. C. for restoration of the attached properties stating that he was unaware of the proceedings under Sections 87 and 88 of the Crl. P. C. as he was away from his village and in fact his case was that he did not know that he was required by the police in the case nor was he aware of the attachment of his properties. Section 87 provides for proclamation for person absconding; Section 88 provides for attachment of property of a person absconding Section 89 which is relevant in this case, provides that '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 (7) of Section 88 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 nett proceeds of the sale, or if part only thereof has been sold, the nett proceeds of the sale and the residue of the property shall, after satisfying thereout all costs incurred in consequence of the attachment be delivered to him'. In this case the requirements of Sections 87 and 88 of the Crl. P. C. have been complied with. The petitioner surrendered within two years from the date of the attachment of his properties. The question therefore that arises is whether he had shown sufficient cause for having absconded for nearly 2 years. The proof that the accused person had not absconded should, under this section, be offered or given within two years of the attachment. It is not enough to show that within that period the accused person appeared voluntarily or was apprehended or brought before the Court. The adverbial phrase 'within two years from the date of the attachment' qualifies not only the word 'appears' but also the word 'proves' which is connected with the word 'appears' by the conjunction 'and'. Prima facie, it looks that an application made after two years for releasing the attached properties is therefore out of time and not entertain-able.

But however, in a case where it is shown by the accused that he had no knowledge that he was wanted in a criminal case and that his property had been attached on the ground that he was absconding, the Court may exercise its inherent power under Section 561A of the Cri. P. C. In this case, no proof has been adduced that the accused was absconding with a view to avoid the process of law. On the other hand his version that he did not know that a criminal case was pending against him, that he was wanted by the Police and that his property had been attached, has not been seriously controverted by the prosecution. In a case where all the accused persons have been acquitted, it would be unjust and inequitable to confiscate the attached properties of the accused for no fault of his. Therefore in such circumstances. the Courts are not debarred from exercising their inherent powers provided under Section 561A of the. Crl. P. C. otherwise for a mere non-fulfillment of technicality the petitioner would be deprived of his property.

3. For the reasons stated above. I allow this revision petition and direct that the properties attached be restored to the petitioner.


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