Prithvl Raj, J.
(1) By this revision petition the petitioner challenges the correctness of the order dated 7th February, 1978, passed by Shri R. Dayal, Additional Chief Metropolitan Magistrate, New Delhi, whereby the learned Magistrate dismissed the application filed by the petitioner under section 84 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') seeking release of the property belonging to her husband Dr. G. J. Reddi, attached in pursuance of the provisions of section 83 of the Code.
(2) Facts relevant disposal of this revision petition are as follows. A case under section 3, 5, 6 and 9 of the Official Secret, Act read with section 120B of the Indian Penal Code, was registered at police station Sriniwaspuri, vide F.I.R. No. 26 of 1977, against the petitioner, her husband, Dr. G. J. Reddi and one K. K. Sarin. Dr. Reddi was declared a proclaimed offender by the Court by an order dated 7th April, 1977. His property was ordered to be attached. The property accordingly was attached on 23rd and 30th April, 1977. The present petitioner moved an application under section 84 of the Code on her own behalf and on behalf of her two minor children for the release of the attached property of her husband. Dr. Reddi. The application, as noted above, was dismissed by Shri R. Dayal, Addl. Chief Metropolitan Magistrate, New Delhi, by his impugned order dated 7th February, 1978.
(3) Feeling aggrieved by the aforesaid order the petitioner has filed the present petition in this Court.
(4) A perusal of the record shows that the prosecution obtained nonbailable warrant from the Court of Shri P. K. Dham, Metropolitan Magistrate on 18th March, 1977. Service of the said warrant could not be effected because of the non-availability of Dr. G. J. Reddi. The prosecution accordingly filed a report on 1st April, 1977, returning the warrant unexecuted staling that Dr. Reddi was avoiding his arrest, with a prayer that coercive process under sections 82 and 83 of the Code be issued against him and that the property belonging to Dr. Reddi be attached and that a receiver for the attached property be appointed.
(5) In her petition before the trial Court the petitioner objected to the attachment of the property of her husband stating that she and her minor sons who at present are residing in Czechoslovakia, have vested interest in house No. B-5/23, Safdarjang Enclave, New Delhi, being the legal heirs of Dr. G. J. Reddi. She further stated that she had no place to stay in Delhi and in the circumstances had been compelled to stay in the Czechoslovakian Embassy. The said application was dismissed by the trial Court by the impugned order.
(6) The petitioner challenges the correctness of the said order, inter alia, on the grounds : (1) that the order of proclamation declaring her husband as an absconder is against the mandatory provisions of sections 82 and 83 of the Code and as such is had in law, (2) that the Court below wrongly came to the conclusion that her husband. Dr.G. J. Reddi, is an absconder ; (3) that the Court failed to appreciate that at the time accused Dr. Reddi left India on 10th February, 1977, he had no knowledge about the case in question and accordingly it was wrong to hold that he left India secretly in order to avoid the process of law; (4) that there was no material before the prosecution to connect the accused, Dr. Reddi with the alleged commisson of the offence; and (5) that it was worng to contend that challenge to the proclamation issued under section 84 of the Code could only be made by the accused person and that it was further wrong for the Court to hold that the. petitioner and her minor children have no right of maintenance from the property in question.
(7) The grounds sought to be urged challenging the correctness of the impugned order are wholly misconceived. According to sub-section (1) of secdon 82 of the Code, if any Court has reason to believe (whethere 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 specified time not less than thirty days from the date of publishing such proclamation. Sub-section (1) of section 83 of the Code empowers the Court issuing a proclamation under section 82, for reasons to be recorded in writing, at any time after the issue of the proclamation, to order attachment of any property, movable or immovable, or both, belonging to the proclaimed person and according to subsection (4) of section 83 of the Code if the property ordered to be attached is immovable, the attachment under the said 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 by taking possession; or by the appointment of a receiver or by an order in writing prohibiting the payment of rent to the proclaimed person or to any one on his behalf.
(8) In the instant case warrant for the arrest of accused Dr. G. J Reddi, was issued on 18th March, 1977, by Shri P. K. Dham, Metropolitan Magistrate, New Delhi, which was returned unserved by Raghbir Singh, Inspector, C. I. D. (SB) with his report dated 1st April, 1977, stating that the accused was purposely concealing himself and avoiding his arrest. The report further goes on to state that hot search was made for the accused in and around Delhi to arrest him, wireless messages were flashed to Superintendents of Police in India for the search and arrest of the accused but he was absconding and avoiding his arrest. Raghbir Singh accordingly in his report requested that proclamation order under section 82 of the Code and attachment of the property under section 83 of the Code may be issued. He also attached with his report a list of movable and immovable property belonging to the accused.
(9) It may be mentioned here that Raghbir Singh Inspector also made a formal application on 4th April, 1977, under sections 82 and 83 of the Code in Court praying that proclamation order under section 82 of the Code be issued against the accused and that orders under section 83 of the Code attaching the property belonging to the accused be also issued. On a perusal of the report of the Inspector and on a consideration of the application filed on 4th April, 1977, by him, Shri P. K. Dham, Metropolitan Magistrate, Delhi, after recording the statement of Raghbir Singh Inspector on oath, was satisfied that accused Dr. G. J. Reddi was absconding and avoiding his arrest. He accordingly by his order dated 7th April, 1977, directed that proclamation under section 82 of the Code be issued against the accused, taking note of the prayer made on behalf of the prosecution that the accused was likely to dispose of his movable and in immovable property be ordered attachment of house No. B-5/23, Safdarjang Enclave, New Delhi, under section 83 of the Code, directing that the said house be sealed and attached with all its household goods belonging to the accused. In respect of the agricultural land belonging to the accused in Ramachandrapuram, Hyderabad, order for attachment of the income there from was issued directing that an authority letter be issued to the Collector, Hyderabad, after giving particulars of the land, its specification and area, to attach the income as directed. Janak Raj, Deputy Superintendent of Police (SB) New Delhi, was appointed as receiver in respect of the shares of the accused in various companies and firms and his bank accounts stating that he will have all the powers of attachment of the debts and shares of the accused in various firms and companies and he will also have all the powers to freeze the bank accounts of the accused in various banks, with a direction, that the receiver should immediately inform the Court after complying with its orders. The Magistrate accordingly directed that process be issued under sections 82 and 83 of the Code for 16th May, 1977. Proclamation and attachment order were issued simultaneously in pursuance of proviso to sub-section (1) of section 83 of the Code which empowers the Court at the time of issuing proclamation on being satisfied that the person in relation to whom proclamation is to issued, is about to dispose of the whole or any part of his property, to order attachment simultaneously with the issue of the proclamation.
(10) On behalf of the petitioner it was contended that there was no material before the Court at the time the proclamation was issued and the property in question was ordered to be attached from which the Court could come to the belief that Dr. Reddi had absconded or was concealing himself so as to avoid his arrest. It was submitted that Dr. Reddi had left India on 10th February, 1977, with valid travel documents while the warrant of his arrest was issued on 18th March, 1977. In the circumstances, it was urged, it could not be said that Dr. Reddi was absconding or concealing himself so as to avoid execution of the warrant.
(11) The order issuing proclamation states that the Court had taken into consideration the report made by Raghbir Singh Inspector as also the application dated 4th April, 1977, made by him after recording his statement. Shri R. L. Bhagat, appearing for the State, however, submitted that he was appearing before the Court on behalf of the prosecution and had produced the police file for the perusal of the Court containing the statement of Shri V. V. Reddi, a prosecution witness, recorded by the police under section 161 of the Code and that the learned Magistrate had the benefit of going through that statement. According to the statement of Shri V. V. Reddi, one Shri G. S. Murthy of Hyderabad, a friend of Dr. G. J. Reddi accused, had been sent by Dr. Reddi to Delhi and that he had come to Delhi on 8th February, 1977, and got exchange permit of Dr. Reddi from him. He further stated that he arranged a meeting between G. S. Murthy and the petitioner and also procured the passport of Dr. Reddi from the petitioner. The petitioner and Shri Murthy had talked in private for some time. On his asking, Shri Murthy told him that Dr. Reddi was in trouble and had sent him to Delhi for procuring exchange permit and his passport. That being so, it cannot be said that there was no material before the Court on 7th April, 1977, to enable it to believe that Dr. Reddi against whom warrant of arrest had been issued was absconding or was concealing himself so that such warrant could not be executed.
(12) Shri Bhagat produced the said police file in the Court. A perusal of that shows that Dr. Reddi was scheduled to leave India from Delhi but he suddenly cancelled his air-reservation through Ashoka travels (P) Ltd. Madras and chose to fly from Hyderabad. The case against the petitioner. Dr. Reddi and K. K. Sarin was registered on 26th January, 1977. From the statement of V. V. Reddi it would be a legitimate inference to draw, on a prima facie consideration of the statement that Dr. G. J. Reddy was aware of the case against him and that is why he surreptitiously left India on 10th February, 1977. in anticipation of his being apprehended and thereby forestall the efforts of the police to arrest him. Dr. Reddi having come to knew of the case against him, the mere fact that he left ln,dia before issuing of the warrant of arrest or passing of the order of proclamation continuing to remain outside India with a view to defeat or delay the exeution of the warrant of arrest, he has to be taken to be an absconding person.
(13) A persual of the order of attachment reveals that Dr. Reddi apart from possessing immovable property had large assets by way of shares in companies and firms besides bank accounts. By not returning to India he had allowed his business interests to go into jeopardy which, prima facie, is indicative of the fact that he is avoiding execution of the warrant of his arrest. It is, thereforee, futile to contend that there was no material on the record to enable the Magistrate to have reasons to believe that Dr. Reddi had absconded or was concealing himself so that the warrant of arrest issued against him could not be executed.
(14) It is equally futile to contend that at the time Dr. Reddi surreptitiously left this country, in the circumstances noted above, he had no knowledge about the case in question. The contention that the ardor of proclamation proclaiming Dr. Reddi as an absconder is against the mandatory provisions of sections 82 and 83 of the Code, is thereforee, wholly misconceived.
(15) The present petition has been, filed by the petitioner on her own behalf and on behalf of her minor children staling that they have interest in the attached property, it being the obligation of Dr. Reddi to maintain the petitioner and his minor children. It need hardly be reiterated that a husbands obligation to maintain his wife is a personal obligation. The husband is bound to maintain his wife even though he has not got any property. Husband's obligation to maintain his wife is independent to any property owned by him. It is also the personal obligation of a father to maintain his minor children irrespective of the property owned by him. The petitioner and her children, thereforee, cannot be said to have an interest in the property in regard to their claim of maintenance against Dr. Reddi. That being so, reliance sought to be placed by the learned counsel for the petitioner on section 28 of Hindu Adoptions and Maintenance Act is misconceived.
(16) Section 85 of the Code prescribes the procedure regarding the release, sale and restoration of attached property. Sub-section (3) of section 85 provides for the release of property on proof by the proclaimed offender to the satisfaction of the Court by whose order the property was attached that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and that he had no such notice of the proclamation as to enable him to attend within the time specified therein. This request for release of property by a proclaimed offender has to be made within two years from the date of attachment. A bare reading of sub-section (3) is enough to hold that the onus of proving that the accused did not abscond for the purpose of avoiding execution of the warrant of arrest and that he had no notice of the proclamation issued, lies on the proclaimed offender, and rightly so, as these clearly are matters within the knowledge of the absconding accused.
(17) In view of my discussion on, the various points, noted above. the petition fails and is hereby dismissed.