Case Note & Summary
The case involves a criminal revision application filed by Dharampal (applicant) against the judgment and order of the Additional Sessions Judge, Udgir, dated 9th April 2009, which allowed an appeal under Section 86 of the Code of Criminal Procedure (CrPC) and set aside the attachment and sale of certain property belonging to respondent No.2 (Shahuraj Navtakke). The applicant had purchased the attached property in a court auction. The background is a criminal case under Section 138 of the Negotiable Instruments Act, 1881, filed by respondent No.5 (Satish Biradar) against respondent No.2 and his firm (respondent No.1). After being released on bail, respondent No.2 absconded, leading to issuance of non-bailable warrants and ultimately a proclamation under Section 82 CrPC on 1st March 2006. The proclamation was published in a newspaper on 24th May 2006. However, the record did not contain the original proclamation, and the mandatory procedure under Section 82 CrPC was not followed. Consequently, the learned Magistrate ordered attachment and sale of respondent No.2's property under Section 83 CrPC. The applicant purchased the property in auction. Respondent No.2 filed an appeal under Section 86 CrPC, which was allowed by the Additional Sessions Judge, setting aside the attachment and sale. The applicant challenged this order in revision. The legal issue was whether the attachment and sale were valid given the non-compliance with Section 82 CrPC. The court analyzed Section 82 CrPC, which requires a written proclamation to be published in a specific manner, including public reading in a conspicuous place. The court found that the mandatory procedure was not followed, as the original proclamation was missing and there was no evidence of compliance with the publication requirements. The court held that the procedure under Section 82 is mandatory and must be strictly complied with before ordering attachment under Section 83. Since the procedure was not followed, the attachment and sale were invalid. The court also noted that the appeal under Section 86 CrPC was maintainable. The decision was to dismiss the revision application, upholding the order of the Additional Sessions Judge setting aside the attachment and sale.
Headnote
A) Criminal Procedure - Proclamation under Section 82 CrPC - Mandatory Procedure - The court held that the procedure prescribed under Section 82 of the Code of Criminal Procedure, 1973 for issuance of proclamation is mandatory and must be strictly followed before ordering attachment under Section 83. In this case, the proclamation was published in a newspaper but the original proclamation was not on record and the mandatory procedure was not followed, rendering the subsequent attachment and sale invalid. (Paras 3-5) B) Criminal Procedure - Attachment and Sale under Section 83 CrPC - Validity - The court held that attachment and sale of property under Section 83 of the Code of Criminal Procedure, 1973 is a drastic step and can only be ordered after strict compliance with Section 82. Since the proclamation procedure was not followed, the order of attachment and sale was set aside. (Paras 4-6) C) Negotiable Instruments Act - Section 138 - Criminal Case - The underlying case was under Section 138 of the Negotiable Instruments Act, 1881, filed by respondent No.5 against respondent No.2. The accused absconded, leading to proclamation and attachment proceedings. (Para 2)
Issue of Consideration
Whether the attachment and sale of property belonging to the accused under Section 83 of the Code of Criminal Procedure is valid when the mandatory procedure under Section 82 of the Code of Criminal Procedure for proclamation was not followed.
Final Decision
The revision application is dismissed. The order of the Additional Sessions Judge, Udgir, dated 9th April 2009, setting aside the attachment and sale of the property, is upheld.
Law Points
- Proclamation under Section 82 CrPC must strictly comply with mandatory procedure
- Attachment and sale of property under Section 83 CrPC is invalid if proclamation procedure is not followed
- Section 86 CrPC appeal lies against order of attachment and sale
