IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 Crl.MC.No. 1183 of 2011 ---------------------------------- [CC.NO.228/2010 (OLD NO.CC.921/07) OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, THIRUVANANTHAPURAM] .................... PETITIONER/ACCUSED NO.3: ------------------------------------------ Y.R.RESTAM, S/O.YAHYA RAWUTHAR, AGED 42 YEARS, PARUTHIYIL HOUSE, MADATHARA P.O., CHITHIRA, KOLLAM, (FORMER C.I.OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM). BY ADV. SRI.P.M.JOSHI. RESPONDENTS/COMPLAINANT: ---------------------------------------------- 1. FASALUDEEN, S/O.AHAMMEDKANNU, 2/163, BILAL NAGAR, KARAMANA P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 001. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY PUBLIC PROSECUTOR SRI. JAIBY PAUL. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1183 of 2011 -------------------------------------- Dated this the 7th day of April, 2011. ORDER Petitioner is accused No.3 in C.C.No.921 of 2007 of the court of learned Judicial First Class Magistrate-I, Thiruvananthapuram (re-filed against petitioner as C.C.No.228 of 2010) for offences punishable under Sections 448, 506(ii), 447, 323, 352 and 451 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Learned Magistrate vide order dated 09.02.2010 discharged the first accused under Section 245 of the Code of Criminal Procedure (for short, “the Code”). The case against second accused was compounded and he was acquitted under Section 320(8) of the Code. By the said order the case against petitioner was refilled as C.C.No.228 of 2010. Learned Magistrate passed the following order : “ Issue NBW and steps u/S. 82 and 83 against him. 09.04.2011”. Learned counsel contended that petitioner is a Police Officer, though he was suspended for quite some time he never absconded, no summons was served or warrant attempted to be executed against him and hence steps under Sections 82 and 83 of the Code were not warranted. At any rate initiating proceeding under Sections 82 and 83 of the code simultaneously as a matter ofcourse is not legal and proper. I have heard learned Public Prosecutor also. Crl.MC No.1183/2011 2 2. Under Section 83 of the Code, the court issuing a proclamation (under Section 82 of the Code) may for reasons to be recorded in writing at any time after the issue of the proclamation, order the attachment of any property, movable or immovable or both belonging to the proclaimed person. The proviso thereunder says that where at the time of issue of the proclamation the court is satisfied by affidavit or otherwise that the person in relation to whom the proclamation is to be issued (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local jurisdiction of the court, the court may order attachment simultaneously with the issue of proclamation. In other words issue of order for attachment simultaneous with issue of proclamation under Section 82 of the Code is permitted only in contingencies provided under clauses (a) and (b) of Section 83(1) of the Code. This Court in Molly v. State of Kerala (1994 (2) KLT 62) has taken the view that proceeding under Sections 82 and 83 of the Code are distinct and separate and they should not be resorted simultaneously as a matter of course. 3. I have gone through the order under challenge and the relevant portion of which is extracted above, relating to issue of steps under Sections 82 and 83 of the Code. Obviously, the proceedings under Sections 82 and 83 of the Code have been taken simultaneously without complying with the proviso to Crl.MC No.1183/2011 3 Section 83 of the Code. So much so, proceeding initiated under Section 83 of the Code cannot be sustained. 4. So far as proceeding under Section 82 of the Code is concerned, that proceeding could be initiated only when the court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed such court may publish a written proclamation. In the present case along with issue of non-bailable warrant steps under Section 82 of the Code also has been taken. Obviously it is not as if the warrant could not be executed as if petitioner absconded or concealed himself that the learned Magistrate has taken steps under Section 82 as well. In the circumstances Annexure-1, order to the extent it related to initiation of steps under Sections 82 and 83 of the Code cannot stand and is liable to be set aside. Learned counsel submitted that petitioner being a Police Officer is employed in connection with election duty and hence he may be granted some time to appear before learned Magistrate. Having regard to the circumstances I am inclined to allow the request. Resultantly this Criminal Miscellaneous Case is allowed in the following lines: Crl.MC No.1183/2011 4 i. Annexure-1, order to the extent that the learned Magistrate ordered steps under Sections 82 and 83 of the Code against petitioner is quashed. ii. Petitioner is granted one month's time from this day to surrender before the learned Magistrate and seek bail/re-call of warrant. iii. Non-bailable warrant issued to petitioner will stand in abeyance during the said period or till petitioner appears before the learned Magistrate whichever is earlier. iv. In case petitioner did not appear in court as above, it is open to the learned Magistrate to take appropriate coercive steps as provided under law. THOMAS P.JOSEPH, Judge. cks