K RAMA KRISHA Vs. STATE OF A P

JUDGEMENT

(1.) THE petitioner/A22 questions in this petition filed under Section 482 Cr.P.C. proclamation dated 2.1.2010 issued by the Judicial Magistrate of the First Class, Jaggaiahpet in Form No.4 under Section 82 Cr.P.C. requiring the petitioner to appear in person before the Magistrate on 7.1.2010, on the sole ground that the said notice is not in conformity with legal requirements of Section 82 Cr.P.C. For the purpose of this petition, it may not be necessary to go. into complicity of A22 the petitioner in Crime No.213 of 2009 of Penuganchiprolu Police Station of Krishna District. It is sufficient to note that it was a case which was registered for offences punishable under Sectionl20B, 147, 148, 302/149 I.P.C relating to an alleged murder of one Ginjupally Veerayya who was a Collgress leader and former sarpanch of the village. THE alleged murder is stated to have been committed at th... instance of persons belonging to Telugu Desarr. Party and in pursuance of a conspiracy due to party factions. As the matter now stands, it ... reported that after completion of investigation, the local police filed charge-sheet and when it was returned with some objections by the Magistrate, it was not represented by the local police as the matter was entrusted to C.I.D police for further investigation. Since A22 could not be apprehended even after obtaining non-bailable warrant as he was absconding, the local police prayed for taking steps under Sections 82 and 83 Cr.P.C against the petitioner/A22. THEreupon, the impugned proclamation was issued by the Magistrate.

(2.) THE only ground urged by the petitioner's counsel before this Court is that the proclamation issued by the Magistrate under Section 82 Cr.P.C is not in accordance with sub-section (1) thereof in as much as the specified time therein for the petitioner to appear before the Magistrate, is not less than 30 days from the date of publication of that proclamation. THE impugned proclamation dated 2.1.2010 called upon A22 to appear before the Magistrate on 7.1.2010, thus giving only 5 days time for appearance. THE petitioner contends that since the proclamation did not give 30 days clear time for appearance of the petitioner before the Magistrate from the date of its publication, it is illegal. According to the petitioner, 30 days time prescribed under Section 82 Cr.P.C is mandatory. THE petitioner's counsel placed reliance on Gurappa Gugal v. State of Mys.1 and Siddangounda v. State of Mys.2 of the Mysore High Court in support of his contention. It is also contended by the petitioner's counsel that the petitioner cannot be deprived of his constitutional right to property. He placed reliance on Vimalben Ajitben Ajitbhai Patel v. Vatslaben Ashokbhai Patel3, of the Supreme Court in this regard, wherein the Supreme Court observed: 1. 1969 Crl. L.J. 826. 2. 1972 Cri. LJ 289.

(3.) DIVISION Bench of the Lahore High Court in Hans Raj v. Emperor6 while dealing with a case relating to attachment of properties of the absconding accused under Sections 87 to 89 of the old Code of Criminal Procedure, 1898 held that in proceedings under Section 87 and 88 (of 1898 Cr.P.C), failure to give necessary notice does not amount to more than an irregularity curable under Section 537 of 1898 Cr.P.C. It was further held therein that in such a case Section 561A of 1898 Cr.P.C corresponding to Section 482 of 1973 Cr.P.C, does not apply where there has been no miscarriage of justice.