Rajasthan High Court - Jodhpur
Subhash vs State on 24 April, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 1 / 2016
Subhash S/o Shri Modu Ram, By caste Jat, Resident of Mali Gaon,
Police Station Bhaggar, District Jhunjhunu (Raj.)
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr K.R.Choudhary
For Respondent(s) : Mr J.P.Bhardwaj - PP
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 24/04/2017 This criminal appeal under section 86 CrPC has been preferred by the appellant being aggrieved with the order dated 07.10.2015 passed by Special Judge, NDPS Cases, Sri Ganganagar (for short 'the trial court' hereinafter) in Cr. Case No. 59/2013, whereby the trial court has rejected the application filed by the appellant under sections 82 and 83 CrPC with a prayer for releasing the agricultural land attached by the order of the trial court dated 10.07.2001 in Sessions Case No.18/2001.
Brief facts of the case are that FIR No.165/2000 was registered at Police Station, Ghoomarwali, District Sri Ganganagar against Mahavir Prasad, Prithvi Raj, Raju and Ranjit for the offence punishable under sections 8/15 and 29 of the NDPS Act. The police after investigation filed charge-sheet against the above named persons on 10.12.2000 for the aforesaid offence and they (2 of 7) [CRLA-1/2016] were put to trial, however, the investigation against the appellant was kept pending under section 173(8) CrPC. The trial against Mahavir Prasad, Prithvi Raj, Raju and Ranjit was commenced and concluded on 29.11.2002.
The trial court after pondering over the prosecution evidence has convicted the above named accused-persons for the offence punishable under section 8/15 NDPS Act, however, the said accused-persons were acquitted from the offence punishable under section 29 of the NDPS Act.
It appears that in the meantime, the charge-sheet was filed against the appellant under section 299 CrPC, however, when the summons were not served upon him, proceedings under sections 82 and 83 were initiated against the appellant. The trial court declared him absconder on 09.02.2001 and vide order dated 10.07.2001 ordered for attachment of his agricultural land situated in Khasra Nos.163, 164, 165 and 120 of village Mali Gaon, District Jhunjhunu. The trial court thereafter ordered for selling of the attached property on various dates and ultimately on 11.07.2005, it decided the proceedings under sections 82 and 82 CrPC against the appellant while observing that the attached land has already been recorded as Government land.
It is not in dispute that despite recording the attached land of the appellant as Government land, the same has not been auctioned till date.
Ultimately, the appellant was arrested on 02.11.2010 and put to trial in Sessions Case No.18/2001 for the offence punishable under section 29 of the NDPS Act. The trial court vide (3 of 7) [CRLA-1/2016] judgment dated 30.03.2011 has acquitted the appellant from the aforesaid charge while holding that the prosecution has failed to prove the charge against the accused-appellant for the offence under section 29 of the NDPS Act.
After his acquittal, the appellant moved an application before the trial court with a prayer that his agricultural land attached pursuant to the orders passed by the trial court be released. The said application has been dismissed by the trial court vide impugned order while observing that as the appellant has failed to move any application within two years from the date of attachment as per sub-section (3) of section 85 CrPC and, therefore, the said application is liable to be dismissed as time barred and the trial court has dismissed the application of the appellant while treating it as time barred. Being aggrieved with this, the appellant has filed this appeal.
Learned counsel for the appellant has submitted that as a matter of fact, the appellant was not aware about the pendency of the criminal case against him for the offence punishable under section 29 of the NDPS Act. He has also submitted that as in the year 2001, he went to Nepal for earning his livelihood and, therefore, summons issued by the trial court to him for attending the trial has never been served upon him. It is contended that when the appellant came to his village in the year 2010, he came to know about the attachment of his agricultural land. It is further contended that the appellant was arrested and put to trial and was ultimately acquitted by the trial court vide judgment dated 30.03.2011. Learned counsel for the appellant has, therefore, (4 of 7) [CRLA-1/2016] argued that once the appellant has appeared before the trial court and faced trial, there is no occasion for the trial court to refuse to release the agricultural land of him attached on account of his non-appearance before the trial court.
Learned counsel for the appellant has placed reliance on a decision of Hon'ble Supreme Court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & Ors., (2008) 4 SCC
649. He has also placed reliance on decisions of this Court rendered in Navia vs. State of Rajasthan & Anr., 2008 (1) R.Cr.D. 460 (Raj.), Smt. Raj Kumari Jain vs. State of Rajasthan, 2012(2) WLC (Raj.) 110, and Mohd. Hussani vs. The State of Rajasthan, 2012 WLC (Raj.) UC 296 and prayed that the impugned orders passed by the trial court may be set aside.
Per contra, learned Public Prosecutor has opposed the prayer of the appellant and submitted that the trial court has not committed any illegality in passing the impugned orders, hence, the appeal preferred by the appellant may be dismissed.
Heard learned counsel for the rival parties and perused the record of the case.
The Hon'ble Supreme Court in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & Ors. (supra) has held as under:
"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, (5 of 7) [CRLA-1/2016] 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. The 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. 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. State 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 Sec.82-83 CrPC 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 State.
5. From the material on record, it appears that the petitioner was facing trial of criminal case for the offence under Sec.16/54 of Excise 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 Sec.82 and 83 CrPC 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 State.
(6 of 7) [CRLA-1/2016]
6. In the circumstances, therefore, the order passed by the Court below cannot sustain and the petition deserves to be allowed to the extent that the the entire land in question mutated in favour of the State be mutated in favour of petitioner and his brother as there was absolutely no proceedings against Tulchha and as per the Jamabandi placed on record, the land was jointly owned by the petitioner and his brother Tulchha."
A Co-ordinate Bench of this Court in Smt. Raj Kumari Jain vs. State of Rajasthan (supra) while referring the decision of the Hon'ble Supreme Court rendered in Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel & ors. (supra) has ordered for releasing the attached property belonging to the appellant of that case.
In Mohd. Hussani vs. The State 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 Sections 82 and 83 of Cr.P.C. 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."
(7 of 7) [CRLA-1/2016] In the present case, from perusal of the certified copy of arrest warrant issued against the appellant for securing his presence before the trial court, which is placed on record by the appellant, it appears that the same was returned with an endorsement that the appellant went to Nepal. As such the arrest warrant remained unserved upon the appellant. Later on in the year 2010, the appellant was arrested and put to trial and was acquitted by the trial court.
Looking to the above facts and circumstances of the case when the appellant appeared before the trial court for facing the trial, as per the law laid down by the Hon'ble Apex Court as well as the decisions rendered by this Court, the purpose of section 82 CrPC has been achieved and there is no point in keeping the agricultural land of the appellant remain attached.
It is also to be noted that in the criminal case, wherein the property of the appellant was attached, he has already been acquitted by the trial court.
In view of the above discussions, the appeal is allowed. The impugned order dated 07.10.2015 as well as the order dated 10.07.2001 passed by the trial court in Sessions Case No.18/2001, whereby the agricultural land of the appellant was attached are hereby set aside. The appropriate authorities are directed to release the agricultural land of the appellant forthwith.
(VIJAY BISHNOI)J. m.asif/PS