TMI Blog1973 (2) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... d attachment. Ultimately the shop viz. the Kailash Stores was seized and sealed on the strength of the writ of attachment issued on 24-11-1972. The writ of proclamation was also executed at about the same time. The claimant-petitioner, Pawan Kumar Gupta, filed an application before the Senior Municipal Magistrate for the release of the shop from attachment on the ground amongst others that he is a bona fide purchaser for value of the stock-in-trade lying in the shop and has been running the business at that place since 10-3-1972. It was further averred that he had also acquired considerable quantities of other articles from different parties and the said articles belonged to him entirely. The verbal agreement between Kailash Chandra Agarwalla and the claimant was ratified by an agreement executed on 2-9-1972 and the latter has been paying rent to the landlord in respect of the shop. On 24-11-1972 the police sealed the shop room in the absence of the claimant petitioner and without making any inventory, seized quite a considerable stock-in-trade stated to be worth over ₹ 10,000/-, lying in the shop at the time. On enquiries he came to know about the case under Section 16(1)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrant of arrest has; been issued has absconded or has been con-j cealing himself so that such warrant cannot be executed; and (b) that on such satisfaction only the Court concerned may publish j a written proclamation, requiring the person concerned to appear at a specified place and at a specified time within a particular period from the date of publication of the proclamation. Mr. Dutta submitted that in this case, the materials on record would make it clear that far from having any such reason to believe that the person concerned, Kailash Chandra Agarwalla, had absconded, the learned magistrate himself was still awaiting the execution report of the warrant of arrest issued against him. Mr. Mukherjee con-t ided however that the numerous orders passed in this context would make it quite clear that the accused concerned was avoiding arrest and lying concealed and, therefore, the requirement of Sub-section (1) to Section 87, Criminal P. C. was duly satisfied, justifying the learned magistrate's direction for the publication of the writ of proclamation. For a proper appreciation of the respective contentions, a reference is necessary to the order-sheet and the orders dated 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is pertinent in this context to refer to the Process-server's report. The relevant report dated the 24th November, 1972 is as follows; Duly published by pasting one copy of the proclamation on door of Kailash Stores. The other copy has been displayed in thana's notice board. On this report of publication, the Court proceeded to take the various steps under Section 88 and ultimately rejected the claim preferred by the objector-petitioner under Sub-section (6-A) to Section 88. In the first instance it is not at all established that the person concerned ordinarily resided at the Kailash Stores within the purview of sub-clause (a). In the second place, though the display of the notice on the notice board of the thana may be taken to indicate a conformance to sub-clause (b), there is still a non- conformance to sub-clause (c) because there is no. whisper of a submission that the copy of the proclamation was affixed to some conspicuous part of the Court house. Mr. Mukherjee appearing on behalf of the State contended that such non-conformance would be a mere irregularity and in any event would not ultimately vitiate the order in view of the very long period of absconsion of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied with, A reference in this context may be made to the observations of the Judicial Committee in the case of K. R. Easwaramurthi Goundan v. The King-Emperor, reported in 71 Ind App 83 : (1944) 45 Cri LJ 721 (PC). Lord Wright delivering the judgment observed at page 91 that Sections 62, 64 and 65 of the Evidence Act define the only evidence which the law permits in order to prove a warrant of arrest, and that is, under Section 62 of the Act and he further proceeded to observe at page 92, in the context of the provisions under Section 87(3), Criminal P. C, that Their Lordships cannot read these words as overriding the requirements of the Evidence Act, or as making the proclamation evidence that the warrants had been issued. I respectfully agree with the said observations and applying the same to the facts of the present case I hold that the contentions raised in this behalf by Mr. Mukherjee cannot be given effect to as otherwise it Will result in a voyage of discovery beyond the bounds of the statute. 7. The non-conformance of Section 87(1) and (2), Criminal P. C. is but a non-conformance to the procedure established by law. The well-known principles laid down by Jesse, M. R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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