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of <h1>Magistrate's Proclamation Invalid; Cattle Forfeiture Ruled Illegal. Compliance with Statutory Requirements Emphasized.</h1> <h3>Birad Dan Versus The State</h3> Birad Dan Versus The State - TMI Issues Involved:1. Legality of the Proclamation under Section 87 of the Code of Criminal Procedure (Cr. P. C.)2. Validity of the Attachment of Property under Section 88 of the Cr. P. C.3. Jurisdiction of the Magistrate under Section 89 of the Cr. P. C.4. Powers of the High Court under Section 439 of the Cr. P. C.Issue-wise Detailed Analysis:1. Legality of the Proclamation under Section 87 of the Cr. P. C.:The principal contention raised by the petitioner was that the proclamation issued by the Magistrate was not in conformity with the mandatory provisions of Section 87, Cr. P. C., and was, therefore, a nullity. Section 87 mandates that the proclamation must specify a time not less than 30 days from the date of the publication of the proclamation for the person to appear. Additionally, the proclamation must be affixed to a conspicuous part of the house of the person required to be present, publicly read in a conspicuous place of the village or town, and affixed to a conspicuous part of the court-house.In this case, the proclamation was issued on 27th January 1954, directing the petitioner to appear within 30 days of the date of the proclamation, which is a clear violation of Section 87. Furthermore, there was no evidence that the proclamation was publicly read in the village or affixed to a conspicuous part of the court-house. Therefore, the requirements of Section 87 were not complied with, rendering the proclamation invalid.2. Validity of the Attachment of Property under Section 88 of the Cr. P. C.:Section 88 allows for the attachment of any property belonging to the proclaimed person. However, Sub-section (6E) of Section 88 states that if the proclaimed person appears within the time specified in the proclamation, the court shall release the property from attachment. Sub-section (7) provides that if the person fails to appear, the property under attachment shall be at the disposal of the State Government.Since the proclamation itself was invalid due to non-compliance with Section 87, the attachment of the petitioner's property under Section 88 cannot be sustained. The attachment is dependent on a valid proclamation, and when the foundation (proclamation) collapses, the superstructure (attachment) cannot be supported.3. Jurisdiction of the Magistrate under Section 89 of the Cr. P. C.:Section 89 provides for the restoration of attached property if the proclaimed person appears voluntarily or is arrested within two years from the date of the attachment and proves that he did not abscond or conceal himself and had no notice of the proclamation. Some courts have held that a Magistrate cannot consider the legality of the proclamation under Section 89. However, this issue was deemed unnecessary to delve into for the present case.4. Powers of the High Court under Section 439 of the Cr. P. C.:The High Court has ample jurisdiction under Section 439 to correct any illegality committed in the lower courts. The court held that it has the power to pass a suitable order regarding the illegality of a defective proclamation, which goes to the root of the matter. The court emphasized that any view contrary to this would result in irremediable injustice.Conclusion:The court concluded that the proclamation issued by the Magistrate was in clear violation of the imperative requirements of Section 87, Cr. P. C., and was, therefore, a nullity. Consequently, the forfeiture of the petitioner's cattle was also illegal. The court ordered the restoration of the cattle to the owner, noting that the cattle were already in the possession of the petitioner or his surety.Additional Observations:The court pointed out the need for Magistrates to exercise greater care in complying with the provisions of Section 87, given the serious consequences for the person found in default. It also noted that the printed forms in use in some courts were defective and misleading, and recommended that they be correctly formulated to conform to the relevant form prescribed in Schedule V of the Cr. P. C.
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