1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1499 OF 2009 Somani Ginning and Pressing a partnership firm through it’s partner, Mr. Ajay S/o Ramnivas Somani, Age : 42 years, Occu.: Business, R/o 26, Mahesh Nagar, Jalna Road,l Aurangabad .. Applicant Versus The State of Maharashtra, (Copy to be served on APP, High Court of Bombay Bench at Aurangabad) .. Respondent Mr. N.R. Pawale, Advocate h/f. Mr. Sachin S. Panale, Advocate for the applicant Mr. N.H. Borade, APP for the respondent-State CORAM : A.V. NIRGUDE, J. DATED : 12th JUNE, 2009 ORAL ORDER:- 1] This Criminal application is challenging the order passed by the learned Xth Judicial 2 Magistrate at Aurangabad, rejecting the applicant’s application seeking attachment of property belonging to the proclaimed accused. The applicant is the complainant in Criminal case no. 1962 of 2008 which is pending before the learned Magistrate. The accused are residents of Coimbatore. Despite service of summons and warrant, they remained absent. The applicant, thereafter made an application under section 82 of Cr.P.C. for issuing proclamation against the accused who were absconding. The applicant filed an affidavit in support of this application and the learned Magistrate, on perusal of the affidavit in support of the application, got convinced and issued the proclamation under section 82 Cr.P.C. The proclamation was published in a newspaper which has circulation at Coimbatore. Despite of proclamation, the accused did not appear before the Court. It seems the action under sub section 4 of section 82 Cr.PC. for declaration that the accused is a ‘proclaimed offender’, has so far not been taken. The applicant before that made an application under section 83 Cr.P.C., seeking attachment of the 3 property belonging to the accused. The applicant then made an affidavit in support of such application, giving details of the properties belonging to the accused, which are situated at or about District Coimbatore. The learned Magistrate however, rejected the application. He recorded the reasons as under:- “ ORDER Perused the application. Heard Ld. Counsel for the complainant. Perused the section 83 of the Code of Criminal Procedure. It is only submitted by the applicant that accused has already closed their factory and now he is trying to escape from India No supporting evidence as well as evidence in support of his contention is filed on record. Without any evidence brought on record, it cannot be presumed that the accused is about to remove his property from jurisdiction of the Court. In the circumstances, I do not think fit to order attachment of property of accused. Hence application is rejected.” 2] This order, is under challenge in this application. The question is whether this order requires, any correction. The answer is in the 4 affirmative. In the supporting affidavit, the applicant clearly stated that the accused had sold their movables, closed down their factory and stopped the manufacturing process. He further stated that they are likely to sell their immovable property. He also expressed his apprehension that the accused might leave India. The learned Magistrate, when he said that there is no supporting evidence to the application, he probably ignored that the affidavit in support of the application itself is the evidence. On similar application and similar affidavit earlier, the same learned Magistrate issued proclamation under section 82 Cr.P.C. 3] I am therefore, of the view that the applicants have made out a case to hold that the accused against whom the proclamation is issued are about to dispose of whole or any part of their property. I am therefore, inclined to set aside the impugned order and replace it with the following order:- 5 ORDER . (I) The property mentioned in the application stands attached. . (II) The warrant of attachment shall be sent to the District Magistrate, Coimbatore for his endorsement. 4] Application disposed of. (A.V. NIRGUDE, J.) arp/12june9/cr1499.09