BIRAD DAN Vs. STATE

JUDGEMENT

(1.) THIS is a revision by the petitioner Birad Dan against an order of the Sessions judge Balotra by which he dismissed the appeal of the petitioner against an order of the First Class Magis- trate, Sanchore, rejecting an application for resto- ration of certain attached property under Sections 87 to 89 of the Code of Criminal procedure.

(2.) THE material facts may be briefly stated as follows. The petitioner was wanted in connection with a case under Sections302, 379, 148 and 149, I P. C. which was pending in the Court of the First Glass Magistrate, Sanchore. It was reported to the Magis-trate that the petitioner was absconding. Thereupon a proclamation under Section 87, Criminal P. C. was drawn up and issued against him, on the 27th Janu-ary, 1954. By this proclamation, the accused was directed to present himself in the Magistrate's Court "within 30 days of the date of the proclama-tion. " 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 volun-tarily, according to the petitioner, on the 22nd March, 1954. On the 24th march, he made an appli-cation 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 peti-tioner then went in appeal to the learned Sessions judge, Balotra who dismissed the appeal as barred by time. I am informed that the petitioner has since been acquitted of the charge levelled against him. It is contended before me on behalf of the peti-tioner that a prayer was made to the learned Ses-sions Judge to treat the appeal as a revision but there is nothing on the record to show that this was done. In any case, the learned Judge did not apply his mind to the question of the illegality of the proclamation issued in the present case and its implications. The present revision has been filed from the aforesaid order.

(3.) THE principal contention raised before me on behalf of the petitioner is that the proclamation issued against him by the Magistrate was not in conformity with the mandatory provisions of Section 87, Cr. P. C. and was, therefore, a nullity and further that any attachment of the cattle under such circumstances could not be supported in law and should be set aside, and the cattle be restored.