P L D 1962 Dacca 245 (PLP)

Where a proclamation under section 87 of the Criminal Procedure Code does not give thirty days for the appearance of the accused, the proclamation is invalid and the subsequent proceedings following upon it are liable to be set aside." It is the latter portion of the principles, namely, that if the period given is less than thirty days, the subsequent proceedings will be illegal, that Mr. Talukdar is pointing out in his support in particular.

8. It appears that the facts of the case cited are a little different. In it not only the time given for appearance was less than thirty days but also the publication of the proclamation and the validity of the validating order was challenged. In other words, there was violation of all the features of section 87 of the Code of Criminal Procedure, namely, subsections (1), (2) and (3) which is not the case here.

9. In the present case the accused had been absconding since the time of charge‑sheet and on a warrant of arrest he was produced before the Court. On 13‑3‑59 he again absconded himself and again a warrant of arrest was issued and he was re‑arrested on 17‑11‑

59. On 18‑11‑59 he again absconded from police custody. It was under those circumstances that proclamation and attachment order was again issued. On 16‑11‑59 the accused was still absconding and a fresh proclamation and attachment was issued but without success. It was not till 15‑5‑60 that he was brought under arrest from Comilla to the Court. Nearly five "months had passed since the date of the impugned proclamation and attachment order.

10. The facts of the present case are thus very peculiar and there is absconsion after absconsion and from the mere fact that thirty days' time was not given for surrender, it cannot be held A that the proceedings are wholly invalid.

11. Mr. Talukdar has next argued that there cannot be simultaneous issue of proclamation and attachment. As con tended by Mr. Siddique Ahmed Chowdhury appearing for the State, there is no bar to simultaneous issue of both. He had cited the decision in Bishundayal Mahton and others v. Emperor (A I R 1943 Pat. 366), which held inter alia that it cannot be said that processes under section 88 cannot be issued unless processes under section 87 had been issued first. It is not necessary that processes under section 88 should be delayed till the time fixed in the process under section 87 has elapsed. Hut processes under sections 87 and 88 cannot be issued unless it is established that warrant had already been issued against the person wanted and that person was absconding. There is no doubt in the present case that warrant had already been issued not once but several times without success. It thus appears that this contention of the learned counsel has also no substance.

12. Mr. Talukdar has text argued by reference to section 89 of the Code of Criminal Procedure that the petitioner was entitled to restoration of the property attached even though he was apprehended and brought before the Court. Section 89 of the Code of Criminal Procedure is as under: ‑‑ "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 subsection (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 bad 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 thereout all costs incurred in consequence of the attachment, be delivered to him."

13. It is true that there is no bar to the restoration petition being canvassed by the petitioner even though he did not voluntarily surrender. But then the restoration petition does not disclose the elements necessary to show that he did not abscond or conceal himself for the purpose of evading execution of the warrant and that he had no notice of the proclamation. It does not also appear that the accused sought to give evidence. Both Courts have agreed that no feasible explanation was offered.

14. Further there is the important question whether the petitioner who took no steps in the proper course against the proceeding under sections 87 and 88 of the Code of Criminal Procedure on the ground of their irregularity, can at this stage challenge them.

15. It appears in the light of the decision in Hans Raj v. Emperor (A I R 1934 Lah. 987) and cited by the learned Advocate for the State that it is too late in the day for the petitioner to re‑open the legality or otherwise of orders under sections 87 and 88 of the Code of Criminal Procedure in an application for restoration under section 89 of the Code. .

16. It was held in the decision as under: ‑ "Where proceedings under sections 87 and 88 have been taken to procure the attendance of the accused, the only way the accused can adopt to obtain release of his property under the Criminal Procedure Code Is by way of the application under section 89 and a Magistrate has no jurisdiction to set aside the order of attachment whether irregular or root and whether passed by himself or some other Magistrate except by virtue of this section. He has no inherent jurisdiction to set aside an order of attachment even if that order is illegal. In proceedings under sections 87 and 88 failure to give the necessary notice does not amount to more than an irregularity curable under section 537 of the Code of Criminal Procedure." Under the circumstances stated above, this ground of Mr. Talukdar also fails. In the result, the Rule is discharged. S. B. Rule discharged.