SIDDANAGOUDA Vs. STATE OF MYSORE

JUDGEMENT

(1.) The First Class Magistrate, Koppal by his order passed on an application presented by the petitioner under S.89 Cr.P.C., in Misc. Case No.84 of 1970, requesting for release of the attached properties in his favour, rejected the request. This petition is directed against that order. The facts necessary for a decision are: that in CC. No.21 of 1968 on the file of the said First Class Magistrate, this petitioner was one of the accused. The charge was under 302 IPC. As it was reported that the petitioner was absconding and the Magistrate felt satisfied, he issued a proclamation under S.87 Cr.P.C. The proclamation was issued on 17-10-1968. It may be mentioned here itself that by the said proclamation, the Magistrate called upon the petitioner to appear in his Court within 29-10-1968 to answer the complaint.

(2.) As the petitioner did not appear in the said Court, the Magistrate proceeded to take action under S.88 Cr.P.C. and attached the properties in question. It is found that the said criminal case ended in acquittal of the remaining accused and that thereafter this petitioner appeared and filed the application in question. In that application the petitioner has made out that he had no knowledge of such a criminal case pending against him and that he was required to be present in the Court in that case and that he was not at all aware of the proclamation and further that the proceedings started against him under Ss.87 and 88 Cr.P.C. are null and void, and, therefore, he was entitled to return of the attached properties.

(3.) The records received from the lower Court show that the petitioner has examined witnesses in proof of the fact that he was not aware of the proceedings in CC. No.21 of 1968 and that he was not absconding. The learned Magistrate has disbelieved the said evidence. In regard to release of properties, he has relied upon the decision in Palsingh v. The State, AIR 1955 Pun 18. He has held on the basis of this decision that the contention of the proclamation being illegal and the entire proceedings based thereon also being illegal, cannot be taken into consideration while dealing with an application under S.89 Cr.P.C.