Madhya Pradesh High Court
Dashrath @ Kallu vs The State Of Madhya Pradesh on 1 July, 2021
Equivalent citations: AIRONLINE 2021 MP 934
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
CRA No.5837/2020
Dashrath @ Kallu vs. State of M.P.
Through Video Conferencing
Gwalior, Dated : 01.07.2021
Shri Rajiv Jain, Counsel for the appellant.
Shri Alok Sharma, Panel Lawyer for the respondent/State.
This criminal appeal under Section 86 of Cr.P.C. has been filed against the order dated 9.10.2020 passed by Shri Pankaj Kumar Verma, Special Judge (Atrocities), Ashoknagar in S.T. No.69/2020 by which the application filed by the appellant under Sections 84 and 85 of Cr.P.C. for release of his property and bank account has been rejected.
According to the prosecution case, on 26.5.2020, the appellant and other co-accused persons not only killed the deceased but also put the house of the complainant on fire, as a result his belongings were also burnt. It appears that thereafter, the appellant absconded and when he could not be apprehended, then an application under Sections 82 and 83 of Cr.P.C. was filed. Proclamation under Section 82 of Cr.P.C. was issued. However, when the appellant did not appear or surrender, accordingly the property of the appellant was attached under Section 83 of Cr.P.C. Later on the appellant surrendered before the Trial Court on 5.9.2020.
Thereafter, the appellant filed an application under Sections 84 and 85 of Cr.P.C. for release of the property. However, by the 2 THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. impugned order the said application has been rejected.
Challenging the order passed by the Court below, it is submitted by the counsel for the appellant that the appellant was not involved in Crime No.108/2020 registered at Police Station Bahadurpur, District Ashoknagar for offence under Sections 302, 307, 294, 147, 148, 149 and 436 of IPC and under Sections 3(2)(v), 3(2)(iv), 3(1)(r) and 3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. It is submitted that on the date of incident, the appellant was in Haridwar and on 22.6.2020, he was in Delhi in connection with his treatment. The appellant was not aware of the proclamation issued under Section 82 and 83 of Cr.P.C. and as soon as he came to know about the said proclamation, he himself surrendered on 5.9.2020. Under these circumstances, it is prayed that the bank account and property of the applicant may be released.
Per contra, the appeal is vehemently opposed by the counsel for the respondent/State.
Heard the learned counsel for the parties.
This Court by order dated 21.1.2021 has passed the following order:
Gwalior, Dated : 21-01-2021 Heard through Video Conferencing. Shri Rajiv Jain, learned counsel for the appellant.3
THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. Shri Ravi Ballabh Tripathi, learned Panel lawyer for the State.
Case diary is not available.
This is an appeal under Section 86 of Cr.P.C. It is the case of the appellant that he was under
treatment in Delhi and he has filed medical prescription dated 21/06/2020 and 22/06/2020. There is nothing on record as to what treatment was taken by the appellant after 22/06/2020 because proclamation under Section 82 and 83 of Cr.P.C. was issued on 14/07/2020 and the appellant has surrendered on 05/09/2020. The appellant has also not clarified the date on which he came to know about proclamation. It is submitted by the counsel for the appellant that for adjudication of this criminal appeal, the allegations made against the appellant may also be considered.
Since, the case diary is not available, therefore, the State counsel is directed to requisition the case diary.
As prayed, list next week.
From the impugned order, the following facts are clear.
(i) On 2.6.2020 the arrest warrant issued against the appellant was received back unserved.
(ii) From the rojnamchasanhas dated 1.6.2020, 2.6.2020, 4.6.2020, 7.6.2020, 8.6.2020 and 9.6.2020 the appellant was found absconding and was not present at the place of his residence and, accordingly, on 9.6.2020, an application under Sections 82 and 83 of Cr.P.C. was filed. Accordingly, on 9.6.2020 itself, the proclamation was issued.
(iii) As the appellant did not surrender or could not be arrested within a period of 30 days, therefore, on 14.7.2020 a proclamation under Section 83 of Cr.P.C. was issued and the bank accounts of the 4 THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. appellant in the State Bank of India, Punjab National Bank, Bank of India as well as OBC Bank, all situated in Ashoknagar as well as house No. HIG 02 Tauta Tower, J.K. Road, A-Sector, Indrapuri, Bhopal were attached. It appears that thereafter the appellant surrendered before the Trial Court on 5.9.2020.
Section 85 of Cr.P.C. reads as under:
85. Release, sale and restoration of attached property. (1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub- section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the 5 THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him.
Thus it is clear from Section 85(3) of Cr.P.C. that in case if the absconding accused is either apprehended or appears voluntarily within a period of two years from the date of attachment and proves to the satisfaction of the Court that he did not abscond or conceal himself and he had no such notice of proclamation so as to enable him to attend within the time specified therein, then the attached property can be delivered to him.
Thus in the light of Section 85(3) of Cr.P.C. the burden lies on the appellant to prove that he was not absconding and he was not aware of the proclamation.
It is submitted by the counsel for the appellant that the appellant was in Haridwar on 26.5.2020 i.e. on the date of incident. Since the appellant was physically ill, therefore, he was undergoing treatment in New Delhi and as soon as he came to know about the proclamation, he surrendered before the Court.
During the course of argument, the counsel for the appellant was directed to point out the address on which the appellant was residing in Haridwar. He was also directed to disclose the name of the hotel in which he was residing during the said period. However, it is submitted by Shri Jain that in fact the appellant was not staying in 6 THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. a hotel but he was staying in the company of Sadhus. Thereafter, Shri Jain was directed to disclose the name of Ashram in which the appellant was residing, then again Shri Jain changed his version and submitted that in fact the appellant was staying in Dharmshala. When Shri Jain was directed to disclose the name of Dharmshala, then he fairly conceded that he has no information about the same. According to the appellant he had taken treatment at New Delhi on 22.6.2020. Accordingly, the counsel for the appellant was also directed to disclose the place where he was staying in New Delhi. Again the counsel for the appellant expressed his ignorance about such information. This Court by order dated 21.1.2021 had also observed that there is nothing on record to show that as to when the appellant came to know about the proclamation. Even after expiry of more than five months, the counsel for the appellant was not in a position to submit that on what date the appellant came to know about the proclamation. Under these circumstances, this Court is of the considered opinion that the appellant has failed to prove to the satisfaction of the Court that he did not abscond or conceal himself for the purposes of avoiding execution of warrant and he had no such notice of proclamation to enable him to attend within the time specified therein.
Furthermore, by the impugned order, the applications filed by 7 THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. two accused persons namely appellant and Girraj Yadav were decided. Girraj Yadav had also filed Criminal Appeal No.2384/2021 which has been disposed of by order dated 31.5.2021 in the light of the orders passed by the Supreme Court in SLP (Cri.) No.1406/2021 by which the co-accused Girraj Yadav have been given liberty to take treatment in AIIMS, New Delhi while remaining in police custody as well as the entire cost of medical treatment and security provided by the State shall be borne by the co-accused Girraj Yadav. However, the counsel for the co-accused Girraj Yadav did not press the appeal on the merits, in the light of the direction given by this Court that the amount required for the treatment and security of the co-accused Girraj Yadav be transferred directly from his account to the account of the hospital and the police Department.
Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that as the appellant has miserably failed to satisfy that he was not absconding and he was not aware of the proclamation issued by the Court under Section 83 of Cr.P.C. coupled with the fact that the criminal antecedents of the co- accused persons i.e., the associates of the appellant, this Court is of the considered opinion that the Trial Court did not commit any mistake by rejecting the application filed under Sections 84 and 85 of Cr.P.C. for release of the property.
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THE HIGH COURT OF MADHYA PRADESH CRA No.5837/2020 Dashrath @ Kallu vs. State of M.P. Accordingly, this appeal fails and is hereby dismissed.
G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2021.07.05 11:07:31 +05'30'