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Panchu Gopal Mullik and anr. Vs. the State and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1415 of 1954
Reported inAIR1955Cal524,1955CriLJ1343,60CWN47
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 88(6A)
AppellantPanchu Gopal Mullik and anr.
RespondentThe State and anr.
Appellant AdvocateBijoy Bhose, Adv.
Respondent AdvocateSurathi Mohan Sanyal, Adv.
- .....claimant or objector has to be given reasonable opportunity for the purpose of establishing the claim or objection as the case may is contended also that the provisions contained in sub-section 6 (d) and the sub-sections immediately preceding it imply a proper enquiry into the claim preferred and it is only after such enquiry that the order made by the magistrate becomes conclusive. it has also been argued that it is not open to the magistrate to review an order passed by his predecessor allowing the petitioners' application for revival of the proceeding and that the period of limitation under sub-section (6a) of section 88 of the code cannot possibly apply to and application for revival. these contentions require to be examined.8. mr. sanyal appearing on behalf of the statehas.....

Debabrata Mookerjee, J.

1. This revision petition raises a rather interesting question of law.

2. One Jagabandhu Mallick left two sons, one of them being the petitioner Panchu Gopal Mallick and the other Akshoy Kumar Mallick since deceased. Akshoy left behind two sons of whom Arun Kumar Mallick petitioner 2 is one. Akshoy had a daughter who was given away in marriage and she died sometime ago leaving behind one Shyamsundar, who is said to be an absconding accused forwhose apprehension proceedings fay way of proclamation and attachment have been taken.

3. A plot of land was said to have been purchased quite a long time ago by the father of the petitioner Panchu Gopal Mallick where certain structures were later raised by the latter and in the house thus constructed the absconding accused Shyamsundar was permitted- to live. The petitioners' case is that Shyamsundar lived there as a licensee & that he had no interest, claim or title to the property in question,

4. It appears that a Magistrate of Ludhiana in the East Punjab had made an order under Section 88, Criminal P. C., purporting to attach the property of the absconding accused Shyamsundar. This order of attachment was certified in due course to the district of 24-Parganas and was served by the local police on the property mentioned above, belonging to the petitioner Panchu Gopal Mallick.

5. Thereafter in March 1952, the present petitioners objected to the attachment and preferred a claim in the Court of the Sub-divisional Magistrate, Alipore. The objection was based on the ground that the absconding accused had no interest whatever in the attached property and consequently the petitioners' interest was not liable to be affected by any process issued or purported to be issued under Section 88 of the Code.

6. It is stated that on account of the old age of the petitioners & particularly the illness of petitioner Panchu Gopal Mallick which necessitated his removal to the Presidency General Hospital Calcutta for treatment, the application objecting to the attachment was not properly prosecuted with the result that on 17-12-1952, the learned Sub-divisional Magistrate without recording any evidence directed the petitioner's objection to be 'filed'.

Thereafter an application was made for revival of the proceedings and the prayer was allowed on 24-3-1954. Presumably the Magistrate who dealt with the petitioner's application for restoration of the proceedings felt persuaded that the ground for non-prosecution was a bona fide one.

The proceedings thus revived were thereafter transferred for disposal to Mr. M.L. Chatterjee, Magistrate, 1st Class, Alipore. In the enquiry that followed, the petitioners produced evidence both oral and documentary and it was contended that the absconding accused Shyamsundar had no interest whatever in the properties attached which the petitioners claimed as belonging to them. The learned Magistrate however by an prder dated 6-12-1954 disposed of the matter whereafter the present Rule was applied for and obtained.

7. Mr. Bhose appearing on behalf of the petitioners has raised several contentions. He has contended that the learned Magistrate has misconceived the true scope of Section 88, Crininal P. C. The argument is that when property is attached pursuant to the provisions of the law contained in Chap. VI of the Code which deals with processes to compel appearance of accused persons, the claimant or objector has to be given reasonable opportunity for the purpose of establishing the claim or objection as the case may be.

It is contended also that the provisions contained in Sub-section 6 (D) and the sub-sections immediately preceding it imply a proper enquiry into the claim preferred and it is only after such enquiry that the order made by the Magistrate becomes conclusive. It has also been argued that it is not open to the Magistrate to review an order passed by his predecessor allowing the petitioners' application for revival of the proceeding and that the period of limitation under Sub-section (6A) of Section 88 of the Code cannot possibly apply to and application for revival. These contentions require to be examined.

8. Mr. Sanyal appearing on behalf of the Statehas argued that in view of the fact that the proceedings' relative to the enquiry having lapsed, theorder of revival was bad and the petitioners cannot be held entitled to the benefit ot any subsequent proceedings. The period of six months within which the claim or objection has to be made or preferred, is a period fixed by the statute and does not leave any discretion whatever to the Magistrate to relax it or to enlarge the time in any circumstance whatever.

In that view, the proceedings revived after the lapse of 6 months are not proceedings contemplated within the meaning of Section 88 of the Code and consequently the petitioners cannot be heard to complain that the revived proceedings had not been properly dealt with and disposed of in accordance with law.

9. Section 88 of the Code authorises a Court issuing a proclamation under Section 87 to order attachment of any property movable or immovable or both belonging to the proclaimed offender. Sub-section (2) authorises attachment outside the place where the proceedings originated and Sub-section (3) prescribes the mode in wlu'ch the property is to be attached. The mode of attachment varies according to the nature of the property and the sub-section provides even for the appointment of a receiver in suitable cases where the property to be attached is immovable.

A somewhat unusual feature from the stand-point of criminal jurisprudence is incorporated in Section 88 by Sub-section (6) which defines the limits of power, duties, and liabilities of a Receiver appointed under the provisions of that sub-section and those duties, powers and liabilities are expressly directed to be controlled by the cognate provisions contained in Order 40, Civil P. C.

Then comes Sub-section (6A) which prescribes the procedure along with the four sub-sections that follow it to be adopted by the Magistrate in determining the question arising out of the claims made or objections preferred in respect of the attached property. As far as I can see these Sub-sections 6(A) to 6(E) which have been incorporated by the Amending Act of 1923, prescribe a complete code for the purpose of determination of the questions which properly fall to be considered in the context of an application making a claim or preferring an objection with regard to attachment under Section 88 of the Code. These sub-sections between them provide a complete machinery by which so far as the criminal court is concerned the rights and interests of claimants or objectors with regard to attached properties have to be determined. It is only when the final stage envisaged in Sub-section 6 (D) is reachedthat the question arises as to the conclusive character of the order made by the Magistrate.

Sub-section 6 (D) provides that any person whose claim or objection has been disallowed either in whole or in part, may within the period of one year from the date of such order, institute a suit to establish the right which he claims in respect ofthe property in dispute and the section adds that 'subject to the result of such suit, if any, the ordershall be conclusive.'

10. The question then is -- when can an order made under this section be said to be conclusive? The scheme of the different sub-sections to which I have called attention seems to make the position clear that when a claim is made or an objection is preferred, opportunity has to be given by the Magistrate who deals with the matter to enable the claimant or the objector to establish his claim or objection as the case may be. That presupposes a full scale enquiry.

To my mind the whole procedure envisaged is a judicial procedure the result of which is capable of being fraught with grave consequences to the per-son adversely affected by an order made at the conclusion of the enquiry. It is to be observed that the order made under Sub-section (6-D) has been expressly made 'conclusive' with the result that it is not subject to appeal or even to revision.

The legislature clearly intended that after an enquiry has been held into the claim made or objection preferred in respect of the attached property the order that follows should 'have the attribute or finality about it and should not be alloyed to be cant vasseu either in appeal or byway of revision. The order thus made continues to be effective unless and until it is set aside by a civil Court of competent jurisdiction.

Thus there can hardly be any doubt that the legislature meant orders passed under Section 6 (D) not to be disturbed further in the criminal court and therefore the language employed that 'the order shall be conclusive' unequivocally declares that intention. It therefore follows that such an order should not be passed lightly in the absence of the party concerned; and where opportunity to make claim or prefer an objection could not be availed of for sufficient grounds the Magistrate certainly has jurisdiction to enlarge the time by giving the party affected further opportunity to contest the proceedings provided of course the claim was initially made within the time limited by the law.

In the present case, the petitioners made the claim within the period of six months prescribed in Section 6 (A), but it could not be prosecuted on the ground of illness and alter sometime the petitioners applied to have the proceedings revived. The Magistrate dealing with the prayer for revival thought it right to accede to the prayer, presumably being satisfied that the grounds urged in support of such revival were bona fide grounds.

This Court is not concerned at this stage with the sufficiency or inadequacy of the grounds upon which the revival was made. The fact remains that a revival was ordered and the proceedings which had lapsed for non-prosecution were revived under the authority of the Magistrate who was dealing with it.

Mr. Sanyal's objection that revival should not have been allowed is, to my mind, a belated one. It was quite open to the State to take steps to prevent further progress of a proceeding which the State considered to be unwarranted in view of the order terminating it on 17-12-1952. No such step was taken to question the revival and I do not think the State can be heard to say now that the order of revival was improperly or wrongly made. It must therefore be held that the material date is not the date of revival of the proceeding but the initiation of it.

11. It is next urged by Mr. Sanyal that the Magistrate was not concerned with the question of determination of 'interest' in the property and that it would be the business of the Civil Court to go into such question if and when raised. I am afraid I can not accept this contention which seems to me to negative, in letter and in spirit, the detailed provisions of Section 88 of the Code which prescribes with as much clarity the object or purpose of the inquiry as the mode in which claims are to be made and, objections arc to be preferred and the procedure as to how they should be heard and disposed of; nor it is easy to appreciate the Magistrate's view that the Criminal Court is concerned with the question of 'possession' only.

This would be to my mind a complete negation of the provisions of the Code if the Criminal Court was to be limited merely to the question of possession of property. The sub-sections which I have read above do not import any such notion. On the other hand by the express provision contained in Sub-section 6 (A) the Criminal Court is called upon toconsider the question of interest to determine the claim or objection and this must necessarily involve consideration of rights giving rise to the interest of the person concerned.

It is indeed significant that the legislature thought fit to incorporate the provisions relating to the powers and functions of a receiver under the Code of Civil Procedure in relation to attachment made of property under the provisions of Section 88 of the Code. I wonder what could possibly have been meant by the Magistrate When he said that the Criminal Court is concerned with the question of possession only and has nothing to do with the question of 'interest' of the party concerned.

12. It is therefore quite clear that by the amendment made in 1923 the legislature provided a complete machinery for the investigation of claims and objections roughly comparable to the cognate provisions contained in Order 21, Civil P. C. The ascertainment of claims and objections is hound in a way to involve investigations of right to property and the. Magistrate is not relieved of his duty to do so by merely pleading that the criminal Court is concerned with question of possession only.

That would he an evasion of the statute. In this view, the now sub-sections are a departure from the established point of view that a criminal court usually concerns itself with questions of right or interest; but the exigency of the attachment of an absconder's property left the legislature no choice but to cast a duty on the Magistrate to hold an enquiry into the interest of the party claiming or objecting the result of which is expressly made conclusive subject only to determination by a civil court of competent jurisdiction. The word interest' is a word of wider import and cannot be limited to mere claim of possession.

13. It remains to consider the question as to whether the period of limitation laid down in Sub-section 6 (D) of Section 88 is to be given an extended interpretation as suggested, by the Magistrate in his order. The petitioners' application was, as I have said, dismissed for default on 17-12-1952. The attachment had been made on the 23rd of February of that year and according to the learned Magistrate the period of limitation would expire in terms of Section 6 (D) on 16-12-1953.

The learned Magistrate seems to think that the order by which the petitioners application was disposed of upon their failure to prosecute it on the 17th of December finally determined the matter, and was conclusive within the meaning of Sub-section 6 (D). I am afraid this contention is liable to be questioned from two points of view.

In the first place, on a plain reading of Sub-section 6 (D) the period of limitation cannot possibly be said to extend back to a date on which the petitioner's application was dismissed for non-prosecution in view of the fact that default was wiped out by an order of the Magistrate which has since not been set aside or even challenged. In the second place, it is to be observed that the learned Magistrate himself has held an enquiry since, and consequently the proceedings before him stand self-condemned if his view of the law as regards limitation and revival were to prevail. I am afraid the position has been completely misunderstood.

The question of limitation in the circumstances of the present case must be said not to arise at all in view of the order of revival of the proceedings which order stands good even today and the alleged conclusiveness of the order cannot possibly relate back to a point of time when the proceedings were said merely to lapse on account of non-prosecution.

It is only the final order made after an inquiry contemplated in Sub-section 6 (A) which is to be considered as conclusive and not liable to be disturb-ed in any criminal court. The Magistrate was, in my judgment, in error in thinking that he had not power to consider the matter on the merits in the view of the law which he took.

14. The result, therefore, is that this Rule ismade absolute and the order of the learned Magistrate is set aside and the matter is directed to bereheard and disposed of in accordance with law bya Magistrate named in Sub-section (6C) of Section 88 of theCode.

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