P L D 1957 Azad J (PLP)

Phalla accused appeared in the Court of Additional District Magistrate, Mirpur on 15th February 1954, but as he had announced judgment in the case, he sent the file to the Revenue Assistant, Magistrate 1st Class, Mirpur for trial of Phalla and Mst. Rabia Bibi. It appears from the file that Phalla, with whom the case was later on compounded, never applied under section 89, Criminal P. C., either for the restoration of the property or its net proceeds. For proper disposal of this case, it is necessary to give a finding on the following points: (a) Whether the Additional District Magistrate could attach the property under section 88, Part (1) when the proclamations under section 87, Criminal P. C. were not issued by him? (b) What is the effect of non‑compliance with section 87, Part (2), Criminal Procedure Code? (c) In case the non‑compliance rendered the proceedings null and void and the property of Phalla was auctioned, what would be the result in view of the limited scope of section 89, Criminal P. C. which does not provide any remedy in such a case? (d) Phalla, the proclaimed offender, never moved the Court under section 89, Criminal P. C. within time limit, either for restoration of his property or its net proceeds. How could this effect his case? There is a conflict of judicial opinions on the points involved in the case and I, therefore, feel that it would be better if a bigger Bench of this Court hears the case and disposes it off. It may be mentioned here that the learned Counsel for the vendee relies on 1911 P R 8 and A I R 1928 Lah.

562. His contention is that all that Phalla is entitled to is the net proceeds of the sale in case he is considered to have met the requirements of section 89, Criminal P. C. A I R 1924 Bom. 485 lays down that the High Court cannot make any order which would conflict with the provisions of section 89 Criminal P. C. in the exercise of their inherent power and if the application for restora tion has not been made within two years from the date of the attachment, the Court has no jurisdiction to make restoration; proper remedy is to apply to the Government at whose disposal the property is according to Law. In A I R 1926 Lah. 662 it was held that it was not only necessary to make a petition but also to prove the necessary facts within the period of two years. The file may be put up to my Lord the Chief Justice for necessary orders in the case. This case has been referred to the Full Bench for clarification of points:‑ (a) Whether the Additional District Magistrate could attach the property under section 88, Part (1) when the proclamations under secti n 87, Criminal P. C. were not issued by him? (b) What is the effect of non‑compliance with section 87, Part (2), Criminal P. C. (c) In case the non‑compliance rendered the proceedings null and void and the property of Phalla was auctioned, what would be the result in view of the limited scope of section b9, Criminal Procedure Code which does not provide any remedy in such a case? (d) Phalla, the proclaimed offender, never moved the Court under section 89, Criminal P. C. within time limit, either for restoration of his property or its net proceeds, How would this affect his case? Point (a).‑--The proclamations under section 87, Criminal P. C. were ordered to be issued by the Revenue Assistant, Magistrate 1st Class, Mirpur from whose Court the case was transferred to the Additional District Magistrate, Mirpur who attached property under section 88, Part (1), Criminal P. C. According to sub‑clause (1) of section 88, Criminal P. C., it is the Court issuing the proclamation under section 87, Criminal P. C. that may at any time order the attachment of any property movable or immovable or both belonging to the proclaimed person, It is to be seen whether the Court of the Additional District Magistrate can also be called the Court issuing the proclamation as a successor Court to the Court of Revenue Assistant, Magistrate Ist Class. Ordinarily, if a case is transferred from one Court to another, the proceedings taken up in the first Court from which the case is transferred continue in the Court to which the case is transferred except, in matters in which de novo proceedings are necessary under the law. In proceedings under sections 87, 88 and 89, Criminal P. C. which form a complete code in itself, there is no mention that when Proceedings are transferred to another Court at a certain stage the pro ceedings already taken up in the Court from which the proceedings are transferred are to be repeated. This being the case, it can be said that all the proceedings taken up in the first Court will be considered to have been taken up by the Court to which the case is transferred. Thus, the Court of the Additional District Magistrate, Mirpur will be considered as a Court issuing the proclamation and could have attached the property under subsection (I) of section 88, Criminal P. C. Points (b) and (c).

‑Requirements of section 87, Criminal P. C. are mandatory and non‑compliance therewith renders the proclamation null and void. The authorities on the point are unanimous on the point. The important question is what would be the effect of non‑compliance with the provisions of section 87, Criminal P. C. If the non-compliance is brought to the notice of the Court in time before the sale is effected, the remedy is simple and easy. The mistakes can be rectified and the illegalities can be cured by issuing fresh orders in accordance with the requirements of the section. The difficulty, however, arises, if the illegality is not pointed out and the sale is completed. Section 89, Criminal P. C. then is the only section which provides for a remedy to the absconder in certain cases. This section, however, does not contemplate or contain any provisions for sales once held to be set aside. The question naturally crops up, whether the High Court can in the exercise of its provisional powers set aside the sale on the ground of any material irregularity or illegality as against the purchaser who is a stranger to the proceedings. We do not think it can. The inherent powers are very wide and are, therefore, to be carefully used. They are only to meet those cases for which no Provision is made elsewhere and, therefore, where there are express provisions of law, there is no inherent power in the High Court to override them. As already remarked, sections 87 to 89, Criminal P. C. form a complete code and whoever approaches the Court in accordance with the provisions of these sections can get the remedy for himself and if he does not avail of those provisions, he must suffer. It las been aptly remarked in A I R 1928 Lah. 562 and 565 by Tek Chand and Bhide, JJ. "that the provisions of sections 87 and 88, Criminal P. C., are penal in character. According to these pro visions, the property of an absconder is not Oki for six months after attachment. If a person is not absconding to evade justice, he can scarcely fail to learn about the, attachment through his relatives in charge of the property during the period. On the other hand, if he is absconding to evade justice, he must take the consequences of his own failure to comply with the process of the Court." We would go a little further and say that under section 89 of the Criminal P. C. an absconder is allowed two years from the date of attachment to appear before the Court and prove 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. If he does not attend the Court even within two years, he should rest content with his lot. There is no other remedy open to him. Point (d).--‑Phalla, the proclaimed offender in this case, never moved the Court under section 89, Criminal P. C. There are certain conditions to be fulfilled by an absconder before he can claim the benefit of section 89, Criminal P. C. These are: (a) that he did not abscond or conceal himself for the purpose of avoiding the execution of the warrant, and (b) that he had not such notice of ‑the proclamation as to enable him to attend within the time specified therein, the burden of proof lies on the absconder and not on the State: Provided these conditions are satisfied, he is entitled to a restoration of the property attached, where it has not been sold, or to the net sale proceeds if the property has already been sold. He, therefore, cannot claim any remedy provided under section 89, Criminal Procedure Code. He has no doubt been following his remedy in the Civil Court, as the reference from the Sessions Judge shows, but never cared to approach the Court under section 89, Criminal P. C. He, therefore, cannot be helped. The reference by the Sessions Judge, Mirpur is rejected. A. H. Reference rejected.