*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU +CRIMINAL PETITION No.101 of 2010 %28-10-2010 #K.Rama Krishna ….petitioner Vs. $ State of Andhra Pradesh, rep. by its Public Prosecutor …. Respondent !Counsel for the Petitioner : Sri M.R.K.Chakravarthy Counsel for the Respondent: Public Prosecutor <Gist : >Head Note: ? Cases referred: 1. 1969 Crl.L.J 826 2. 1972 Crl.L.J 289 3. AIR 2008 Supreme Court 2675 4. 2004 Crl.L.J 3651 5. AIR 1934 Lahore 987 IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.101 of 2010 DATE:28.10.2010 Between: K.Rama Krishna …… Petitioner And: State of Andhra Pradesh, Rep. By its Public Prosecutor …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.101 of 2010 ORDER: The petitioner/A-22 questions in this petition filed under Section 482 Cr.P.C proclamation dated 02.01.2010 issued by the Judicial Magistrate of the First Class, Jaggaiahpet in Form No.4 under Section 82 Cr.P.C requiring the petitioner to appear in person before the Magistrate on 07.01.2010, on the sole ground that the said notice is not in conformity with legal requirements of Section 82 Cr.P.C. For the purpose of this petition, it may not be necessary to go into complicity of A-22/the petitioner in Crime No.213 of 2009 of Penuganchiprolu Police Station of Krishna District. It is sufficient to note that it was a case which was registered for offences punishable under Section 120-B, 147, 148, 302/149 I.P.C relating to an alleged murder of one Ginjupally Veerayya who was a Congress leader and former surpanch of the village. The alleged murder is stated to have been committed at the instance of persons belonging to Telugu Desam Party and in pursuance of a conspiracy due to party factions. As the matter now stands, it is reported that after completion of investigation, the local police filed charge sheet and when it was returned with some objections by the Magistrate, it was not represented by the local police as the matter was entrusted to C.I.D police for further investigation. Since A-22 could not be apprehended even after obtaining non-bailable warrant as he was absconding, the local police prayed for taking steps under Sections 82 and 83 Cr.P.C against the petitioner/A-22. Thereupon, the impugned proclamation was issued by the Magistrate. 2) The only ground urged by the petitioner’s counsel before this Court is that the proclamation issued by the Magistrate under Section 82 Cr.P.C is not in accordance with sub-Section (1) thereof in as much as the specified time therein for the petitioner to appear before the Magistrate, is not less than 30 days from the date of publication of that proclamation. The impugned proclamation dated 02.01.2010 called upon A-22 to appear before the Magistrate on 07.01.2010, thus giving only 5 days time for appearance. The petitioner contends that since the proclamation did not give 30 days clear time for appearance of the petitioner before the Magistrate from the date of its publication, it is illegal. According to the petitioner, 30 days time prescribed under Section 82 Cr.P.C is mandatory. The petitioner’s counsel placed reliance on Gurappa Gugal V. State of Mysore[1] and Siddangouda V. State of Mysore[2] of the Mysore High Court in support of his contention. It is also contended by the petitioner’s counsel that the petitioner cannot be deprived of his constitutional right to property. He placed reliance on Vimalben Ajitbhai Patel V. Vatslaben Ashokbhai Patel[3] of the Supreme Court in this regard, wherein the Supreme Court observed; “42. The right of property is no longer a fundamental right. But still it is a constitutional right. Apart from constitutional right it is also a human right. The procedures laid down for deprivation thereof must be scrupulously complied with”. While referring to the scheme contained in Part-C relating to proclamation and attachment in chapter-VI relating to process to compel appearance in Cr.P.C, the Supreme Court observed as follows: “( 32 ) THE provisions contained in Section 82 of the Code of Criminal procedure 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 Code of Criminal Procedure do not warrant sale of the 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 State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code.” Thus, intendment of Section 82 Cr.P.C is to secure presence of the accused. By the date of issue of the impugned proclamation, there was no attachment to any property belonging to A-22. Intention of the Magistrate is to secure presence of A-22 during investigation, so that he would throw some light on the offence proper and would facilitate the investigating officer to complete the investigation and to come to some logical conclusion in the crime. Since proprietory right of the petitioner was not in any way interfered with by the State i.e., by the Magistrate or by the police by issue of the impugned proclamation, the question of protecting the petitioner’s right to property does not arise when the matter was at the stage of Section 82 Cr.P.C. It is stated by the Additional Public Prosecutor that till today the petitioner/A-22 did not surrender either before the Magistrate or before the police and is still absconding. 3) No doubt, not only two single Judges of the Mysore High Court in Gurappa Gugal (1 supra) and Siddangouda (2 supra) but also another single Judge of the Gujarat High Court in Savitaben Govindbhai Patel V. State of Gujarat[4] came to the conclusion that proclamation against absconding person issued under Section 82 Cr.P.C (corresponding to Section 87 of Old Cr.P.C of 1898) calling upon him to appear on a date which is less than 30 days is invalid and is liable to be quashed. The Supreme Court in Vimalben (3 supra) allowed the appeal filed against Savitaben (4 supra). Thus, Savitaben (4 supra) is no longer good law as it was set aside by the Supreme Court in Vimalben (3 supra). 4) Division Bench of the Lahore High Court in Hans Raj V. Emperor[5] while dealing with a case relating to attachment of properties of the absconding accused under Sections 87 to 89 of the old Code of Criminal Procedure, 1898 held that in proceedings under Section 87 and 88 (of 1898 Cr.P.C), failure to give necessary notice does not amount to more than an irregularity curable under Section 537 of 1898 Cr.P.C. It was further held therein that in such a case Section 561-A of 1898 Cr.P.C corresponding to Section 482 of 1973 Cr.P.C, does not apply where there has been no miscarriage of justice. 5) Inherent power of this Court under Section 482 Cr.P.C can be exercised by this Court in three contingencies viz., (a) to give effect to any order under the Code or (b) to prevent abuse of process of any Court or (c) to secure the ends of Justice. In this case, the petitioner gave Vakalat to his Advocate at Hyderabad on 05.01.2010 and this petition was filed in this Court on 06.01.2010 agitating technical ground of lack of 30 days time. In the impugned proclamation dated 02.01.2010, the Magistrate called upon the petitioner to appear before him on 07.01.2010. Even prior to the notified date of 07.01.2010 mentioned in the impugned proclamation, the petitioner obtained copy of the proclamation affixed to his house door and handed over the same to his advocate at Hyderabad on 05.01.2010. Instead of rushing to this Court, the petitioner could have appeared before the Magistrate in the local Court. Due to failure of giving 30 days time as contemplated under Section 82 Cr.P.C, the petitioner did not suffer any prejudice nor injustice. It is evident that the petitioner was aware about the proclamation dated 02.01.2010 even before the notified date for his appearance on 07.01.2010. Therefore, this Court does not find any reason to invoke Section 482 Cr.P.C to give relief to the petitioner in this petition. 6) In the light of decision of the Supreme Court (3 supra) setting aside decision of Single Judge of the Gujarat High Court (4 supra), two decisions of the Mysore High Court (1 and 2 supra) do not persuade me to accept them as laying correct proposition of law. Therefore, I hold that 30 days time prescribed in Section 82(1) Cr.P.C is not mandatory but is only directory. I find that the impugned proclamation is not liable to be quashed. 7) In the result, the Criminal petition is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J October 29, 2010 NOTE: L.R.Copy to be marked (b/o) KSH [1] 1969 Crl.L.J 826 [2] 1972 Crl.L.J 289 [3] AIR 2008 Supreme Court 2675 [4] 2004 Crl.L.J 3651 [5] A.I.R 1934 Lahore 987