SURAJ NARAIN PRASAD SINGH Vs. EMPEROR

JUDGEMENT

(1.) The facts which have given rise to this reference are as follows: A prosecution under the Criminal Law Amendment Act had been started against one Ram Sarup Prasad Singh. He absconded and a proclamation and order of attachment under Secs.87 and 88 of the Criminal P. C. were issued. Ram Sarup Prasad Singh and another member of the joint family to which he belongs had obtained a joint decree for a sum of Rs. 1,896. This sum was paid on January 9, 1932, to their Pleader but it was immediately attached by the Sub-Divisional Officer under Section 88. A week later Ram Sarup was arrested and on February 19, 1932, he was convicted and sentenced to imprisonment and a fine amounting to Rs. 1, 500. On February 25, 1932, this fine realised by attachment under Section 386 of the Criminal P. C. of the sum which had already been attached under Section 88. On March 1, 1932, the fine was by challan credited to the Government and a balance of Rs. 396 is now lying in deposit.

(2.) On January 19, 1933, a number of other members of Ram Sarup's family applied to the Magistrate for a refund of the entire amount of Rs. 1, 896, on the ground that in a case in the High Court the attachment of the property of a joint Hindu family for the levy of a fine imposed upon an individual member had been declared illegal. The Sub-Divisional Officer rejected the petition and they made an application to the Sessions Judge for reference of the matter to this Court. The Sessions Judge acceded to their request and has referred the matter with a recommendation that the order of attachment may be set aside. A Bench of this Court directed that notice should be served upon the Government Advocate and he has appeared in opposition to the reference.

(3.) On behalf of the petitioners Mr. Baldeo Sahay has referred to the cases of Ram Chander Pandey V/s. Emperor 140 Ind. Cas. 72 : 13 P.L.T. 536 :A.I.R. 1932 Pat. 301 : (1932) Cr. Cas. 773 : Ind. Rul. (1932) Pat. 290 : 33 Cr. L.J. 958, and Rajendra Prasad Missir V/s. Emperor 140 Ind. Cas. 101 : 13 P.L.T. 549 : A.I.R. 932 : Pat. 292 : (1932) Cr. Cas. 764 : Ind. Rul. (1932) Pat. 281 : 33 Cr. L.J. 872 : 12 Pat. 29. He has urged that if we decide, as he says we must, that the original order for attachment was invalid then under Section 423(1)(d), we may make any consequential order that may be just or proper and may direct the Crown to return the fine which was paid to it out of the property attached as we have under Section 439 all the powers of an Appellate Court in the case of a matter referred to us under that section. It is to be noted that there is no question of setting aside of the fine and no question as to whether it was properly inflicted. Therefore, in my opinion, there is no analogy with the procedure for the recovery of a fine held to have been improperly inflicted; nor is there any analogy with a similar procedure for the recovery, of compensation held to have been improperly awarded. The attachment under Section 386 of the sum previously attached under Section 88 has ceased to exist and had no force when the amount of the fine had been taken out of the money attached and handed over to the Crown. Section 386 contemplates the summary determination of claims made by a person other than the offender in respect of any property attached and the Local Government is empowered to make rules regulating the manner in which the warrants are to be executed and for the summary determination of such claims and in my opinion, it is clear that such claims, and such procedure are concerned only with the attachment and not with the return of fines after they have been credited to Government and the attachment has ceased. Section 88 provides a complete Code for the attachment of the property of absconding persons and claims by persons ether than the absconder to the property attached but this attachment ceased when the absconder surrendered or was arrested and in any case came to an end when the subsequent attachment under Section 386 was effected. The use of the words "summary determination" in Section 386(2) makes clear the intention of the legislature that the claim is to be determined forthwith before any further dealing with the property attached and that after the disposal of the property the matter of the attachment must be considered as concluded. The matter is analogous to attachment by a Civil Court pending the determination of a suit. As long as the order of attachment remains in force, proceedings may be taken to set it aside but when the Court directs in the determination of the suit that the property attached is to be handed over to one of the parties the remedy of any one aggrieved is not in respect of the order of attachment. For this reason I am of opinion that the reference should be rejected. If the claimants have any rights against the Crown they may proceed by a regular suit. The Government Advocate states that the balance of Rs. 396 now lying in deposit is at the disposal of the petitioners if they should care to withdraw it. Kulwant Sahay, J.