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TMI Blog1957 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proclamation." The Magistrate also issued a warrant of attachment under Section 88, Criminal P. C. on the same date and in pursuance thereof, certain cattle of the petitioner was attached. This cattle was claimed by petitioner's son to be his own and the petitioner also seems to say so but the point whether it belongs to the petitioner or his son under the circumstances is immaterial. The accused appeared in Court voluntarily , according to the petitioner, on the 22nd March, 1954. On the 24th March, he made an application to the Magistrate that he had never absconds ed and that he was ill and undergoing treatment elsewhere and that the proclamation issued against him was illegal and inoperative and that as soon as he came to know of it he had appeared in Court. The Magistrate recorded evidence on the question or the petitioner's illness and eventually came to the conclusion that it was not worthy of belief. In that view the Magistrate refused to restore the attached cattle to the petitioner, and rejected his application by his order dated the 30th June, 1956. The petitioner then went in appeal to the learned Sessions Judge, Balotra who dismissed the appeal as bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd a proceeding after satisfying himself that the necessary requirements as mentioned above have been complied with, that the proclamation was duly published on a specified date and when this is done, Sub-section (3) of Section 87 provides that such a statement in writing by the Court shall be conclusive evidence that the requirements of Section 87 have been duty complied with and that the proclamation had been published on the specified date. Section 83 then provides that the court issuing a proclamation may also at any time order the attachment of any property, movable or immovable belonging to the proclaimed person. Then the important sub-sections are (6E) and (7) of Section 88. Sub-section (6E) provides that where the proclaimed person appears within the time specified in the proclamation, the court shall make an order releasing the property from the attachment- Sub-section (7) provides for those cases where the proclaimed person fails to appear within the time specified in the proclamation, and lays down that in such a case, the property under attach-ment shall be at the disposal of the State Government. Then we come to Section 89 which provides for the restoration of the atta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, AIR 1955 Pun 18 and the view there taken is that the terms of Section 87, Cr. P. C. as to time and place and as to the manner of publication are mandatory, and that a breach thereof cannot be cured by the application of Section 537, Cr P. C. Apart from AIR 1934 Lah 987, there is thus a strong current of authority that the requirements of Section 87 are imperative in so far as they lay down the condition as to time which should not be less than 30 days from the date of the publication of the proclamation, and also with respect to the manner of publication which has been laid down in Clauses (a), (b) and (c) of Sub-section (2) of Section 87, and that if these conditions are not properly fulfilled, then the proclamation would be void ab initio and could not sustain the penalty prescribed under Section 88. See in this connection Queen-Empress v. Subbarayar, I L R 19 Mad 3 and The Queen v. Bisheshur Pershad, 2 N W H C R 441. I respectfully agree with this view . I may also point; out here that no presumption under Sub-section (3) of Section 87 would arise where the requirements of this section have not been complied with or where the Court issuing the proclamation has failed, as in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding execution of the warrant issued against him, and (2) that he had not such notice of the proclamation as to enable him to attend within the time specified therein, and, that a plea as to the illegality of the proclamation cannot be held to fall within the four corners of Section 89. Kapur J., as he then was, in A I R 1955 Pun 18 seems to hold a contrary view. It seems to me, however, unnecessary to So into that controversy. So far as the powers of this Court are concerned, the view has been mor. or lets uniformly taken that, apart altogether from the provisions of Section 561A which may or may not be capable of being invoked according to the exigencies of a particular case this Court would have ample jurisdiction under Section 439, Criminal P. C. to pass a suitable order having regard to the illegality with respect to a defective proclamation brought to its notice, and going to the very root of the matter. I have no doubt that this Court has ample powers under Section 439 to correct any illegality which might have been committed in the Courts below in a matter of this kind. Any other view, in my opinion, would result in an irremediable injustice particularly on the view that Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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