J. M. L. Sinha J. - (1.) THIS is an application under Section 482 of the Code of Criminal Procedure filed by Abdul Majeed (thereinafter called the petitioner) praying that the order dated 6-6-1981 passed by the Sessions Judge, Hamirpur, may be set aside and further praying that the property attached in pursuance of an order passed by the Collector under Sections 82 and 83 of the Code of Criminal Procedure be released.
(2.) THE facts giving rise to this application can briefly be stated as under THE District Magistrate of Hamirpur issued a notice under Section 3 of the U. P. Control of Goondas Act (hereinafter called the Act) calling upon the applicant to appear before him on 14-7-1980. THE case could not, however, be taken up that day and the Reader of the District Magistrate informed the petitioner's brother that the case would be taken up the following day. On that date the District Magistrate issued a non-bailable warrant against the applicant. On 2nd of September, 1980, the petitioner appeared before the District Magistrate. He was taken into custody. He then applied for bail which was granted on furnishing two sureties. THE applicant, accordingly, furnished his personal and surety bond. Even though the two sureties furnished by the petitioner happened to be Advocates, namely, Sri Abdul Halim and Sri Jai Karan Singh, the District Magistrate did not accept the bonds and ordered verification thereof from the Tehsildar with the necessary consequence that the petitioner was sent to jail. THE Tahsildar, Hamirpur, by his report dated 5th of September, 1980, verified that the surety-bonds were reliable and this report was put up before the District Magistrate on 6th of September, 1980. It sounds strange that even then the District Magistrate did not pass an order for the release of the applicant and instead directed that the report be put up on 16th of September, 1980, viz. the date fixed in the case. No orders could, however, be passed on 16th of September, 1980, as the District Magistrate was on tour and his link officer directed that the case may come up on 29th of September, 1980. In the meantime, however, the petitioner filed in this Court a Habeas Corpus Petition No. 7731 of 1980 challenging his detention in jail despite furnishing of bonds. On 20th of September, 1980, this Court disposed of the Habeas Corpus Petition and directed that the petitioner may be released forthwith on the sureties that had already been furnished by him on 2nd of September, 1980 and had been verified to be sound by the Tahsildar. It was also directed by this Court that the District Magistrate should report compliance within 48 hours. It was, however, on 29th of March, 1981 that the applicant was released on bail. 13th of January, 1981 was then fixed for arguments in the case on which date the petitioner applied for adjournment on the ground that he was ill. This application was allowed and 2nd of February, 1981 was fixed for arguments. On that date the petitioner was present with his counsel but the Presiding Officer was on leave and hence the case was adjourned to 16th of February, 1981. THE case then came up on 16th of February, 1981, 2nd of March, 1981 and 10th of March, 1981, but could not be taken up because on the first two dates the Presiding Officer was on tour and on the date last mentioned, the Presiding Officer was busy in connection with the inspection of the Commissioner. 23rd of March, 1981 was the next date fixed in the case. On that date the petitioner could not attend the court of the District Magistrate on the ground of illness. He sent an application for adjournment accompanied by a medical certificate. His counsel also moved an application for adjournment on the ground that since the petitioner was not present, he had not been able to prepare the case. Both the applications were rejected and non-bailable warrants were issued against the petitioner fixing 6th of April 1981. On 24th of March i. e. the very next day another application was moved by the petitioner's counsel that he was prepared to argue the case and the order dated 23rd of March, 1981 for issue of non-bailable warrant be withdrawn. THE District Magistrate, however, rejected this application. On 30th of March, 1981, the District Magistrate issued an order for attachment of the property of the petitioner under Sections 82 and 83 the Code of Criminal Procedure. On 2nd of April 1981 the property was attached. It may be mentioned here that against the order for issue of non-bailable warrant the petitioner had filed a Writ Petition No. 4642 of 1981 in this Court and had obtained an interim order staying the execution of the warrant. On same date thereafter the applicant moved an application before the District Magistrate for release of property. It appears that the petitioner had also filed an appeal in the court of Session against the order of attachment of property and asked for an interim order for the release of the property which application was rejected on 6-6-1981. By the present petition the petitioner has challenged the validity of the attachment order dated 30th of March, 1981 as well as the order dated 6-6-1981 passed by the Sessions Judge, Hamirpur, in appeal rejecting the application for interim release. Now, so far as the order dated 6-6-1981 is concerned, it was admitted on both hands that the appeal in which that order was passed had been dismissed as not maintainable and that no remedy has been sought so far against that order passed by the Session Judge. Under the circumstances the order dated 6-6-1981 passed by the Sessions Judge, Hamirpur in the appeal has also become infructuous and need not be taken into account. Learned counsel for the parties agree that I may confine myself in the present application only to the order regarding attachment of property. In response to the notice Issued the District Magistrate of Hamirpur, who has been impleaded as opposite party no. I has filed a counter-affidavit. The fact that an attachment order was passed and in compliance of that order the property belonging to the petitioner was attached on 2nd of April, 1981 has not been controverted in the counter-affidavit. The limited question for consideration, therefore, is whether it was open to the District Magistrate to take recourse to the provisions contained in sections 82 and 83 CrPC while seized of the case under the Act.
(3.) LEARNED Advocate General, who appeared on behalf of opposite party no. 1, invited my attention to sub-section (2) of section 7 of the Act which reads as follows "In particular and without prejudice to the generality of the foregoing provisions (a) The District Magistrate while issuing notice to any person under subsection (1) of section 3 may issue a warrant far his arrest with endorsement thereon of a direction in terms of the provisions of section 76 of the said Code, and the provisions of Sections 75 to 92 of the said Code shall, so far as may be, apply in relation to such warrant as if the District Magistrate were a Court." Now, for the application of 7 (2) (a) of the Act two things are necessary (i) That a warrant is issued for the arrest of the persons proceeded against at the 6ame time when notice is issued under Section 3 and (ii) That there is an endorsement in the warrant in terms of the provisions of Section 76 of the Code of Criminal Procedure.;