TMI Blog1954 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner voluntarily surrendered himself or was apprehended and brought before the Court on 15th April 1951. He was tried under Section 302, Indian Penal Code, but was acquitted by the Sessions Judge by his order dated 12th April 1952. On 21st of April 1951 the petitioner applied under Section 39, Criminal Procedure Code, for restoration of his attached property but the trial Court after hearing evidence came to the conclusion that the conditions laid down in Section 89, Criminal Procedure Code, for restoring the attached property were not satisfied in this case and therefore the petitioner could not get any relief from the Criminal Courts and suggested that his remedy lies in a Civil Court- or in the High Court under Section 439, Criminal Procedure Code. His appeal was also dismissed by the learned Additional Sessions Judge, Ferozepur . The petitioner filed the present revision petition which came up for hearing before Kapur J. who finding a conflict in Lahore decisions referred the matter tc the Division Bench and it has come before us under the orders of Honourable the Chief Justice. 3. The learned counsel for the petitioner urged before us rather half-heartedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted under Section 174, Indian Penal Code, for disobeying this defective 'proclamation. It is not understood how Section 537, Criminal Procedure Code, could be made applicable in such a case as suggested by the learned counsel for the State. It is impossible to regard disobedience to an express and mandatory provision of law as a mere irregularity. If the petitioner had been prosecuted under Section 174, Indian Penal Code, the State could not have urged successfully that Section 537 may be utilized in proof of the legality of the proclamation and that defects in the proclamation may be ignored or in other words that an illegal proclamation may be considered to be legal by applying Section 537, Criminal Procedure Code, to it. As observed by Blacker J. in -- 'Mt. Jawai v. Emperor' AIR 1942 Lah 214 (A) at pages 214-215: A failure of justice, however, does not mean an erroneous decision or conclusion. It means that that procedure has not been followed which in the ordinary course would give the accused person or the persons with regard to whom such proceedings are taken a fair opportunity to appear and clear his position. There are three requirements of Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an an irregularity which can be cured under Section 537, Criminal Procedure Code. The learned Judges have given no reasons for their decision and for making an illegal proclamation legal by applying Section 537, Criminal Procedure Code, and their decision may well have been different if the case reported in 'AIR 1919 Lah 57 (B) had been brought to their notice. In any case with due respect to the learned Judges I am of the opinion that Section 537, Criminal Procedure Code cannot be applied to make an illegal proclamation legal. It is significant that Blacker J. and Teja Singh J. when dealing with this very matter did not refer to this decision of the Division Bench which was binding on them. 7. Now the question arises regarding the remedy available to the petitioner after it has been that the relief provided in Section 89, Procedure Code was not available to him. In 'Hans Raj's case (E)' the Honourable Judges were, asked to interfere under Section 561-A of Criminal Procedure Code but they declined to do so in the peculiar circumstances of that case. I am, however, of the opinion that Section 561-A, Criminal Procedure Code, can have no application to case like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, Criminal Procedure Code, was dismissed and the order was affirmed by the learned Additional Sessions Judge. Pal Singh has come up in revision to this Court and when the matter was placed before me I found that there was some conflict of opinion in the Lahore High Court and I referred the matter to a Division Bench. 13. Section 87, Criminal Procedure Code, provides for proclamations against, persons who are absconders and the relevant portions of this Section are 87 (1)* * *such Court may publish a written proclamation requiring him to appear at a specified time not less than thirty days from the date of publishing such proclamation. (2) * * (3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day shall be conclusive evidence that the requirements of this Section have been complied with, and that, the proclamation was published on such day. 14. Under Section 88, Criminal Procedure Code, a Court issuing a proclamation under Section 87 may at any time order the attachment of the property * * * belonging to the proclaimed person, and under Section 89, Criminal Procedure Code, a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All that Section 88 provides is that the Court issuing the proclamation under Section 87 can at any time order the attachment. The question arises as to what is the effect of Section 89. As I have already said two conditions are necessary for getting the property restored, (1) that the accused did not abscond and (2) that he had no such notice as to enable him to attend within the time specified therein. It is true that in the present case it has not been shown that the accused did not abscond or conceal himself, but in my opinion unless there is proof 01 the fact that requirements of Section 87 were complied with no presumption can arise that the accused had as a matter of fact come to know as to the lima specified when he was to attend, and therefore, in my opinion, it cannot be held that he had such notice, and it was not necessary for him to show that he could not attend within the period specified in the proclamation. I am, therefore, of the opinion that even under Section 89 the property could be restored. 17. The question then arises what are the powers of this Court. Section 561A of the Criminal Procedure Code gives to this Court inherent powers to make orders necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X
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