- (1.) THIS is a revision application from an order of the Sessions Judge, Ganganagar dated 28-11-1967 rejecting the petitioner's prayer under sec. 89, Cr. P. C. for restoration of the agricultural land sold in connection with the proceedings under sec. 87 and 88, Cr. P. C. against the petitioner.
(2.) THE petitioner Manak was prosecuted for an offence under sec, 420, I. P. C. and since the warrant issued against him could not be executed and there was allegation against him that he had absconded or was concealing himself with a view to evade the service of the warrant, the Magistrate issued a written proclamation on 14-10-1965 requiring the petitioner to appear before the Court on 19-10-1965, which was published on 20-11-1965 and by this proclamation the accused was called upon to appear within 30 days from 19-10-1965. Accused Manak, however, did not appear within the time fixed for his appearance in the proclamation and consequently certain agricultural land belonging to him was attached on 24-1-1966 and ultimately sold through the Tehsildar, Suratgarh on 3-10-1966 for a sum of Rs. 24,000/ -. Here it may be stated, that the land in question had been mortgaged by the petitioner to one Bagdawat, who preferred an objection to the attachment of the property but his objection was disallowed on 21-2-1966, and it was directed that he may retain the possession of the land as a receiver till it is sold and may be paid the mortgage money out of the sale proceeds of the land. Aggrieved by the order of attachment and sale of the property Bagdawat came in revision right upto this Court but was unsuccessful and as already observed above the Tehsildar auctioned the land and accepted the bid of the non-petitioners Sohanlal and Thakur for Rs. 24,000/ -. Thereafter the petitioner Manak surrendered himself in the Court on 4-11-1966 and was admitted to bail. He also made an application under sec. 89, Cr. P. C. in the Court of Munsif Magistrate, First Class, Shri Ganganagar, which was seized of the criminal case under sec. 420, I. P. C. wherein it was stated that the accused had never absconded or concealed himself with a view to evade the execution of the warrant and prayed that the auction of the land made by the Tehsildar, Suratgarh on 3-10-1966 be declared null and void and the land may be restored to him. The auction purchasers also applied for issue of sale certificate in their favour and for delivery of possession of the land to them. Both these applications were heard together by the learned Magistrate, who after taking into consideration the evidence produced by the parties including the State of Rajasthan came to the conclusion that the petitioner Manak had neither absconded nor concealed himself so that the warrant issued against him may not be executed. He also came to the conclusion that the petitioner had no notice of the proclamation so as to enable him to appear within the time specified therein. The learned Magistrate, therefore, directed that the net proceeds of the sale of the property which had already been sold to the respondent Nos. 2 and 3 Sohanlal and Thakar may be given to Manak after deducting the expenses incurred in connection with the attachment and sale of the property and also after paying Rs. 5000/- as mortgage money to Bagdawat. The petitioner's prayer for declaring the sale as null and void and restoring the property to the petitioner was however rejected by the learned Magistrate on the ground that it was outside the scope of sec. 89, Cr. P. C, and not within the powers to adjudicate upon the legality or otherwise of the proclamation issued under sec. 89, Cr. P. C. He held that the enquiry under sec. 89 was only limited to the question whether the petitioner did not abscond or conceal himself for the purpose of avoiding the execution of the warrant and whether he had no such notice of the proclamation as to enable him to appear in the court within the time specified therein. Dissatisfied with the order of the learned Magistrate dated 23-10-1967 the petitioner filed a revision application in the Court of Sessions Judge, Ganaga. nagar which was subsequently trated as an appeal by the learned Judge on the request of the petitioner himself. The learned Sessions Judge held that the proclamation issued under sec. 87, Cr. P. C. was undoubtedly invalid, but he concurred in the finding of the Magistrate that in view of the clear provisions of sec. 89, Cr. P. C. the petitioner could get only the net proceeds of the same and was not entitled to restoration of the land. He was also of the opinion that the defect in the proclamation had not in any way prejudiced the petitioner as the petitioner had surrendered before the Court nearly 11 months after the date of its publication. The petitioner therefore has filed a revision to this Court from the order of the learned Sessions Judge, Ganganagar dated 28-11-1967. The finding of the learned Sessions Judge that the proclamation issued under sec. 87, Cr, P. C. against the petitioner is invalid has not been challenged before me by the learned counsel fort he respondent as well as learned Assistant Government Advocate. The argument of the learned counsel for the petitioner is that since the proclamation is void, ab initio, not being in conformity with mandatory provisions of sec. 87, Cr. P. C. , the subsequent attachment and sale of the property cannot be supported in law and must be set aside and the property be restored. In support of his contention the learned counsel has relied upon Mian Jan vs. Abdul (l), Emperor vs. Multan Singh (2), Mt. Jawai vs. Ernperor (3) Jagdev Khan vs. Emperor (4), Karnubha vs. State (5), Pal Singh vs. The State (6), and Birad Dan vs. The State (7 ). On the other hand Mr. Lekh Raj Mehta, learned counsel for the auction purchasers has contended that sec. 89 Cr. P. C. prescribes a remedy where there is a good and legal publication of the proclamation issued under sec. 87, Cr. P. C. , but offers no facility for contesting of the legality of the proclamation. He has urged that a sale has taken place and the purchasers have acquired the title, to the land and in such circumstances the petitioner may seek his remedy by a civil suit, if so advised, but cannot get any relief in this revision filed under sec. 439, Cr. P. C. The judicial opinion seems to be uniform on the point that sec. 87, Cr. P. C. must be strictly construed and that the proceedings of attachment under sec. 88, Cr. P. C. can be taken only by the Court which had issued a valid proclamation within the provisions of sec. 87, Cr. P. G. , as an illegal proclamation is no proclamation in the eye of law and the penalty provided in sec. 88 for disobedience of the proclamation cannot be imposed upon the petitioner unless the proclamation is valid. In the case relied upon by the learned counsel for the petitioner execpt Mian Jan vs. Abdul (l) the property had not been sold and the proceedings under sec. 88, Cr. P. C. had not gone beyond the stage of attachment, which was set aside and the property was restored. In Mian Jan vs. Abdul (1), however, the property had been sold and a prayer was made for setting aside the sale in a civil suit and the learned Judges were pleased to hold that a suit was maintainable. In Birad Dan vs. The State (7) Modi J. , observed as follows: "this court would have ample jurisdiction under s 439, Cr. P. C. to pass a suitable order having regard to the illegality with respect to a defective proclamation brought to its notice and going to the very root of the matter. I have no doubt that this court has ample powers under s. 439 to correct any illegality which might have been committed in the courts below in a matter of this kind. Any other view, in my opinion, would result in an irremediable injustice particularly on the view that sec. 89 is not intended to cover a case of illegality in the making or the manner of publication of a proclamation. " It is no doubt correct that in that case also the property had been only attached and not sold, but this much was accepted that this court has jurisdiction to consider the question of illegality in the making or the manner of publication of a proclamation in proceedings arising out of an application under sec. 89, Cr. P. C. Even in Abdullah vs. Jitu (8) relied upon by the learned counsel for the respondents-auction purchasers, all that was observed was that sec. 89 prescribed a remedy where there is a good and legal publication, but offers no facility for the contesting of the illegality of the proclamation. The learned Judge did not consider the question whether the High Court would have jurisdiction under S. 439, Cr. P. C. to pass a suitable order having regard to the illegality with respect to a defective proclamation brought to its notice going to the very root of the matter ? I am of the opinion that this Court has ample jurisdiction under sec. 439, Cr. P. C. to go into the question of legality of the proclamation. As already observed above the proclamation in the present case is invalid as the provisions of sec. 87, Cr. P. C. , requiring the petitioner to appear on a day not less than 30 days from the date of the publication of the same was not complied with. Thus the proclamation issued against the petitioner by the Magistrate was not in conformity with the mandatory provisions of sec. 87 of the Criminal Procedure Code, and was therefore, nullity. The next question, therefore, which arises for my consideration is whether on account of this fundamental defect in the proclamation all the subsequent proceedings including the sale of the property are liable to be set aside in the revi-sional jurisdiction of this court? The contention raised on behalf of the respondent-auction purchaser, is that even in these circumstances the only course open to the petitioner for getting the sale set aside is to file a civil suit and in support of this contention reliance has been placed on Abdullah vs. Jitu (8) and Mian Jan vs. Abdul; 1 ). At this stage I may state that a contrary view was taken in Dewa Singh vs. Fazal Dad (9 ). Tekchand J. , observed as follows: - "i have no doubt that a 'proclaimed' person, immovable property belonging to whom has been attached and sold by the criminal court, has no right to maintain an ordinary civil action against the auction purchaser for its restoration even though the procedure laid down for issuing the proclamation and attachment had not been strictly followed. It seems to me that secs. 87, 89 form a 'complete code' by themselves and the remedies provided therein to afford relief to a person who considers himself aggrieved by orders passed under any of these sections are exclusive subject of course to the right of appeal (wherever expressly given) or any order that the High Court may choose to pass, in the exercise of its revisional jurisdiction under sec. 439 or its inherent powers. " In this view of the matter it was held that a civil suit for the purpose of setting aside such a sale is impliedly barred by the provisions of Criminal Procedure Code. However I do not consider it necessary or desirable to give a firm finding here whether a civil suit for setting aside a sale in the circumstances which existed in the present case would lie or not ? But in my view when the foundation for attachment and sale viz. the proclamation issued u/sec. 87 Cr. P. C. , collapses the superstructure of attachment and further consequent proceedings cannot possibly be supported or sustained. I am also of the opinion that in a fit and proper case this Court has ample jurisdiction under sec. 439, Cr. P. C. to pass a suitable order including the order for setting aside the sale, if it comes to the conclusion that the sale is invalid on account of non compliance of the mandatory provisions of law. In Manilal Mohanlal vs. Sayed Ahmed (lo) their Lordships of the Supreme Court held that the non payment of price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity and the same are wiped out as if they do not exist in the eye of law. In the circumstances of the present case also since no proper foundation for sale of the property under sec. 88, Cr. P. C. was laid down by issuing a proper and valid proclamation under sec. 87, Cr. P. C. the sale must be held as a nullity i. e. there was no sale in the eye of law as and the purchasers had acquired no right at all. In this view of the matter I hold that this is a fit case in which this court should interfere and the same must be set aside as it was a nullity in the eye of law. Learned counsel for the petitioner also urged that the sale in favour of the respondent-auction purchasers was not complete as the Court had not confirmed it and he pressed into service the provisions of Order XXI, C. P. C. regarding the confirmation of sale in execution proceedings. Learned counsel for the respondents, however, objected that the petitioner should not be allowed to urge this point as he had not taken it in the lower courts nor had made it a ground of attack in the revision application before this Court. It is also contended by him that the sale was complete in favour of the auction purchasers as soon as the bid was accepted and the money was paid by them. However, in view of the conclusion to which I have arrived regarding the sale being invalid in the eye of the law I do not consider it necessary to decide the question, whether the sale was complete and the auction purchasers had acquired title to the property in question? In the result I allow this revision and modify the orders of the lower courts to this extent that the sale of the land in question in favour of the respondent Nos. 2 and 3 Sohanlal and Thakar held on 3-10 1966 was a nullity and is hereby set aside. The sale price paid by the auction purchasers shall be returned to them forthwith. I am informed by all the parties that the property is still in possession of the mortgagee Bagdawat, with whom it had been mortgaged by the petitioner and from whose possession the property was attached. It is, therefore, not necessary to give any directions regarding the delivery of possession of the property. The expenses incurred in connection with the attachment and sale of the property shall be realised from the petitioner. . ;