K RAMA KRISHNA Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner/A-22 questions in this petition filed under Section 482 Cr.P.C proclamation dated 02.01.2010 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 07.01.2010, 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 A-22/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 Section 120-B, 147, 148, 302/149 I.P.C relating to an alleged murder of one Ginjupally Veerayya who was a Congress leader and former surpanch of the village. The alleged murder is stated to have been committed at the instance of persons belonging to Telugu Desam Party and in pursuance of a conspiracy due to party factions. As the matter now stands, it is 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 A-22 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/A-22. 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 02.01.2010 called upon A-22 to appear before the Magistrate on 07.01.2010, 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 Mysore1 and Siddangouda V. State of Mysore2 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 Ajitbhai Patel V. Vatslaben Ashokbhai Patel3 of the Supreme Court in this regard, wherein the Supreme Court observed;

(3.) No doubt, not only two single Judges of the Mysore High Court in Gurappa Gugal (1 supra) and Siddangouda (2 supra) but also another single Judge of the Gujarat High Court in Savitaben Govindbhai Patel V. State of Gujarat4 came to the conclusion that proclamation against absconding person issued under Section 82 Cr.P.C (corresponding to Section 87 of Old Cr.P.C of 1898) calling upon him to appear on a date which is less than 30 days is invalid and is liable to be quashed. The Supreme Court in Vimalben (3 supra) allowed the appeal filed against Savitaben (4 supra). Thus, Savitaben (4 supra) is no longer good law as it was set aside by the Supreme Court in Vimalben (3 supra).