HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. CRIMINAL MISC. PETITION NO. 665 / 2017 IN S.B. CRIMINAL APPEAL NO. 806 / 2015 1. [ENTITY] son of Shri [ENTITY], by caste Jat, 2. [ENTITY] son of Shri [ENTITY], by caste Rajput, resident of Khedapa, Tehsil Bawari, District Jodhpur. Petitioners VERSUS [ENTITY] Respondent Counsel For Appellant(s) : Mr. [ENTITY] Counsel For Respondent(s) : Mr. [ENTITY], PP HON'BLE MR. JUSTICE [ENTITY]
Judgment / Order 24/05/2017 This criminal misc. petition has been preferred by the petitioners being aggrieved with the order dated 15.10.2016 passed by the Special Judge, NDPS Cases No.2, Chittorgarh on an application preferred by the petitioners under [SECTION] [ACT], whereby the trial court has ordered for attaching the said application of the petitioners with the record of the [CASE NUMBER] decided on 7.4.2014.
Brief facts of the case are that one [ENTITY] son of [ENTITY], resident of Khedapa, Distt. Jodhpur was facing trial for the offences punishable under [SECTION] and [SECTION] of the [ACT] in [CASE NUMBER] in the court of the Special Judge, (2 of 6) [CASE NUMBER]. During the pendency of the trial, [ENTITY] was granted interim bail and the petitioners stood sureties for him.
After expiry of the period of interim bail, [ENTITY] could not report to the jail authorities and, therefore, proceedings under [SECTION] [ACT] were initiated against the petitioners and [ENTITY] by the trial court. Meanwhile, [ENTITY] appeared before the trial court and faced trial and the trial court vide judgment dated 7.4.2014 has acquitted [ENTITY] from the charges levelled against him.
As per the case of the petitioners, they have intimated the trial court that [ENTITY] has appeared before it, however, in the meantime, by the order of the trial court, the agricultural land of the petitioners was attached and recorded as government land in the revenue record. After knowing this, the petitioners have moved an application under [SECTION] [ACT] before the trial court with a prayer for releasing their agricultural land in their name from the government land.
The trial court vide order dated 15.10.2016 without deciding the said application has ordered that the application preferred by the petitioners under [SECTION] [ACT] be attached with the record of the [CASE NUMBER].
Learned counsel for the petitioners has submitted that once [ENTITY] has appeared before the trial court and faced trial, the application preferred by the petitioners under [SECTION] [ACT] ought to have been allowed by the trial court, however, the trial court has illegally ordered for attaching the application (3 of 6) preferred by the petitioners under [SECTION] [ACT] with the record of the [CASE NUMBER].
Learned counsel for the petitioners has placed reliance on the decision of the Hon'ble Supreme Court in [PRECEDENT]., (2008) 4 SCC
649. He has also placed reliance on decisions of this Court rendered in Navia vs. [ENTITY] of Rajasthan & Anr., 2008 (1) R.Cr.D. 460 (Raj.), Smt. Raj Kumari Jain vs. [ENTITY] of Rajasthan, 2012(2) WLC (Raj.) 110, and Mohd. Hussani vs. The [ENTITY] of Rajasthan, 2012 WLC (Raj.) UC 296 and prayed that the impugned order passed by the trial court may be set aside.
Per contra, learned Pubilc Prosecutor has opposed the prayer made by learned counsel for the petitioners and submitted that the trial court has not committed any illegality in passing the impugned order, hence, the misc. Petition preferred by the petitioners may be dismissed.
Heard learned counsel for the rival parties and perused the material avilable on record.
The Hon'ble Supreme Court in [PRECEDENT]. (supra) has held as under:
"32. The provisions contained in [SECTION] of the [ACT] were put on the statute book for certain purpose. It was enacted to secure the presence of the accused. Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the [ACT] do not warrant sale of the (4 of 6) property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the [ENTITY] and the accused. The complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the [ENTITY] subject to any order passed under [SECTION] of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon."
A Co-ordinate Bench of this Court in Navia vs. [ENTITY] of Rajasthan & Anr. (supra) has held as under:
"4. It appears that during the pendency of that case, the petitioner remained absconding and for that proceeding under [SECTION] [ACT] was initiated against the petitioner and the land of the petitioner and his brother was attached and thereafter, it was mutated in favour of the [ENTITY].
5. From the material on record, it appears that the petitioner was facing trial of criminal case for the offence under [SECTION] of [ACT], which on conclusion of the trial culminated in conviction of the petitioner but he was released on probation. The land, which was attached in proceedings under [SECTION] and [SECTION] [ACT] was to be released from attachment on appearance of the petitioner and therefore, it was not proper for the Trial Court to have ordered to mutate his land in favour of the [ENTITY].
6. In the circumstances, therefore, the order passed by the Court below cannot sustain and the (5 of 6) petition deserves to be allowed to the extent that the the entire land in question mutated in favour of the [ENTITY] be mutated in favour of petitioner and his brother as there was absolutely no proceedings against [ENTITY] and as per the Jamabandi placed on record, the land was jointly owned by the petitioner and his brother [ENTITY]."
A Co-ordinate Bench of this Court in Smt. Raj Kumari Jain vs. [ENTITY] of Rajasthan (supra) while referring the decision of the Hon'ble Supreme Court rendered in [PRECEDENT]. (supra) has ordered for releasing the attached property belonging to the appellant of that case.
In Mohd. Hussani vs. The [ENTITY] of Rajasthan (supra), a Co-ordinate Bench of this Court has held as under:
"6. It is settled position of law that when the accused was summoned to appear before the court and later on if a report has been obtained on the bailable warrant that accused is out of India, it cannot be said that accused avoiding the service of the summon and, in these circumstances, the proceedings under [SECTION] and [SECTION] of [ACT] cannot be started against the accused and he cannot be declared as proclaimed offender.
7. Accordingly, the misc. petition is allowed and the order of the learned trial court dated 24.09.1999 and the subsequent orders passed to that order, regarding attachment of the property and auctioning of property are set aside. Learned counsel for the petitioner is directed to keep present petitioner for trial before the learned trial court within two months from today and the learned trial court shall proceed in accordance with law."
(6 of 6) In the present case, it is not in dispute that [ENTITY] appeared before the trial court and faced trial and vide judgment dated 7.4.2014 passed by the Special Judge, NDPS Cases No.2, Chittorgarh in [CASE NUMBER] was acquitted from the charges levelled against him.
Looking to the fact that [ENTITY] appeared before the trial court and faced trial and was acquitted from the charges levelled against him, as per law laid down by the Hon'ble Supreme Court as well as in the above referred decisions of this Court, the purpose of [SECTION] [ACT] has been achieved and there is no point in keeping the land of the petitioners remained attached.
In view of the above discussion, this misc. petition is allowed. The impugned order dated 15.10.2016, passed by the Special Judge, NDPS Cases No.2, Chittorgarh on an application preferred by the petitioners under [SECTION] [ACT], directing to attach the said application with the record of the [CASE NUMBER] decided on 7.4.2014, is hereby set aside.
The Special Judge, NDPS Cases No.2, Chittorgarh is directed to issue necessary directions for releasing the agricultural land of the petitioners from attachment forthwith.
The revenue authorities are directed to enter the name of the petitioners in the revenue record for the said agaricutural land.
([ENTITY]), J.
ms rathore/11