Himachal Pradesh High Court
Budhi Singh Chauhan vs State Of H.P. & Ors on 3 January, 2025
Neutral Citation No. ( 2025:HHC:397 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No.489 of 2023.
Reserved on: 27.12.2024.
Date of Decision: 03.01.2025.
Budhi Singh Chauhan ...Petitioner
Versus
State of H.P. & Ors. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Petitioner : Mr. Nitin Thakur, Advocate.
For the Respondents : Mr. Lokender Kutlehria, Additional
Advocate General for Respondent
No.1.
None for respondent No.2.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
quashing of order dated 20.01.2021 regarding the attachment and
sale of the petitioner’s property in the complaints titled Rajeev
Sood versus Budhi Singh and Praful Kuthiala versus Budhi Singh. It
has been asserted that the petitioner’s land situated in Khasra No.
393/1, 393/2/1, 391, 391/1/1, 393/3/1 in Up Mohal Chaedal, Tehsil
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:397 )
Kotkhai, District Shimla was ordered to be attached in complaints
titled Rajeev Sood versus Budhi Singh Chauhan and Praful Kuthiala
versus Budhi Singh Chauhan, as the petitioner failed to appear
before the Court and was declared a proclaimed offender. A civil
suit No. 114 of 2011 was decreed against the petitioner ex-parte for
₹ 54,44,520/- along with pendente lite and future interest at the
rate of 18 % per annum on 31.07.2013. This civil suit was
compromised between the parties on 19.09.2014 by filing a joint
application under Order 23 Rule 3 of CPC. He undertook to pay the
outstanding amount on 14.10.2015. He paid ₹12 lacs to respondent
No. 2 and ₹ 3 lacs to respondent No.3. He could not pay the agreed
amount. An execution petition No. 23 of 2016 was filed against him.
OMPs No. 383 of 2018 and 759 of 2021 were filed in the execution
petition No. 23 of 2016 between the same parties, and a prayer of
attachment of the property was also made. The petitioner settled
the dispute with the private respondents for ₹ 50 lacs; hence, he be
permitted to dispose of the property bearing Khasra No. 393/1 to
make the full and final payment and leave the property for his
grandson and unmarried daughter. The petitioner’s grandson is
ailing, and he requires financial and medical support. Petitioner’s
daughter had borrowed ₹16 lacs from the family and friends to
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settle a case with the UCO Bank. Hence, it was prayed that the
attachment of the property be quashed in view of the compromise
between the parties.
2. No reply was filed by the State.
3. I have heard Mr. Nitin Thakur, learned counsel for the
petitioner and Mr. Lokender Kutleheria, learned Additional
Advocate General for respondent No.1/State.
4. Mr Nitin Thakur, learned counsel for the petitioner,
submitted that the matter had been compromised between the
parties; therefore, the present petition be allowed, the order of
attachment be quashed, and the petitioner be permitted to sell part
of the property.
5. Mr Lokender Kutlheria, learned Additional Advocate
General for respondent No.1/State, submitted that the petitioner
has been declared a proclaimed offender, and he cannot seek relief
from the Court without surrendering before the Court. He prayed
that the present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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7. Copies of the order sheets annexed to the petition show
that the petitioner was arrayed as an accused and was declared a
proclaimed offender by learned Additional Chief Judicial
Magistrate, Court No.2 and by learned Judicial Magistrate First
Class, Court No.4.
8. Sections 82 to 85 of the CrPC deal with the
proclamation, attachment and restoration of the property. They
read as under:
82. Proclamation for person absconding.–(1) If any Court
has reason to believe (whether after taking evidence or not)
that any person against whom a warrant has been issued by
it has absconded or is concealing himself so that such
warrant cannot be executed, such Court may publish a
written proclamation requiring him to appear at a specified
place and at a specified time not less than thirty days from
the date of publishing such proclamation.
(2) The proclamation shall be published as follows: —
(i) (a) it shall be publicly read in some conspicuous
place of the town or village in which such person
ordinarily resides;
(b) it shall be affixed to some conspicuous part of the
house or homestead in which such person ordinarily
resides or to some conspicuous place of such town or
village;
(c) a copy thereof shall be affixed to some conspicuous
part of the Court-house;
(ii) the Court may also if it thinks fit, direct a copy of the
proclamation to be published in a daily newspaper
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circulating in the place in which such person ordinarily
resides.
(3) A statement in writing by the Court issuing the
proclamation to the effect that the proclamation was duly
published on a specified day, in the manner specified in
clause (i) of sub-section (2), shall be conclusive evidence
that the requirements of this section have been complied
with and that the proclamation was published on such day.
(4) Where a proclamation published under sub-section (1) is
in respect of a person accused of an offence punishable under
sections 302, 304, 364, 367, 382, 392, 393, 394, 395, 396,
397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian
Penal Code (45 of 1860), and such person fails to appear at
the specified place and time required by the proclamation,
the Court may, after making such inquiry as it thinks fit,
pronounce him a proclaimed offender and make a
declaration to that effect.
(5) The provisions of sub-sections (2) and (3) shall apply to a
declaration made by the Court under sub-section (4) as they
apply to the proclamation published under sub-section (1).]
83. Attachment of property of person absconding. — (1) The
Court issuing a proclamation under section 82 may, for
reasons to be recorded in writing, at any time after the issue
of the proclamation, order the attachment of any property,
movable or immovable, or both, belonging to the proclaimed
person:
Provided that where at the time of the issue of the
proclamation, the Court is satisfied, by affidavit or
otherwise, that the person in relation to whom the
proclamation is to be issued —
(a) is about to dispose of the whole or any part of his
property, or
(b) is about to remove the whole or any part of his
property from the local jurisdiction of the Court, it may
order the attachment simultaneously with the issue of
the proclamation.
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(2) Such order shall authorise the attachment of any
property belonging to such person within the district in
which it is made, and it shall authorise the attachment of any
property belonging to such person without such district
when endorsed by the District Magistrate within whose
district such property is situate.
(3) If the property ordered to be attached is a debt or other
movable property, the attachment under this section shall be
made–
(a) by seizure or
(b) by the appointment of a receiver or
(c) by an order in writing prohibiting the delivery of
such property to the proclaimed person or to anyone
on his behalf or
(d) by all or any two of such methods as the Court
thinks fit.
(4) If the property ordered to be attached is immovable, the
attachment under this section shall, in the case of land
paying revenue to the State Government, be made through
the Collector of the district in which the land is situate, and
in all other cases–
(a) by taking possession; or
(b) by the appointment of a receiver or
(c) by an order in writing prohibiting the payment of
rent on delivery of property to the proclaimed person
or to anyone on his behalf or
(d) by all or any two of such methods, as the Court
thinks fit.
(5) If the property ordered to be attached consists of live
stock or is of a perishable nature, the Court may, if it thinks
it expedient, order immediate sale thereof, and in such case,
the proceeds of the sale shall abide the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed
under this section shall be the same as those of a receiver
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appointed under the Code of Civil Procedure, 1908 (5 of
1908).
84. Claims and objections to attachment.–(1) If any claim is
preferred to, or objection made to the attachment of, any
property attached under section 83, within six months from
the date of such attachment, by any person other than the
proclaimed person, on the ground that the claimant or
objector has an interest in such property, and that such
interest is not liable to attachment under section 83, the
claim or objection shall be inquired into, and may be allowed
or disallowed in whole or in part:
Provided that any claim preferred or objection made within
the period allowed by this sub-section may, in the event of
the death of the claimant or objector, be continued by his
legal representative.
(2) Claims or objections under sub-section (1) may be
preferred or made in the Court by which the order of
attachment is issued, or if the claim or objection is in respect
of property attached under an order endorsed under sub-
section (2) of section 83, in the Court of the Chief Judicial
Magistrate of the district in which the attachment is made.
(3) Every such claim or objection shall be inquired into by the
Court in which it is preferred or made:
Provided that, if it is preferred or made in the Court of a Chief
Judicial Magistrate, he may make it over for disposal to any
Magistrate subordinate to him.
(4) Any person whose claim or objection has been disallowed
in whole or in part by an order under sub-section (1) may,
within a period of one year from the date of such order,
institute a suit to establish the right which he claims in
respect of the property in dispute; but subject to the result of
such suit, if any, the order shall be conclusive.
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.
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(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 residue of the property, shall,
after satisfying therefrom all costs incurred in consequence
of the attachment, be delivered to him.
9. Section 82 of the Code of Criminal Procedure empowers
the Court to issue a proclamation for securing the presence of an
absconding person. Section 83 empowers the Court to attach the
property of the proclaimed offender. Section 84 deals with the
objections to the attachment. Section 85 provides that the objection
to the attachment has to be made within six months from the date
of the attachment, and if the proclaimed person appears within the
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Neutral Citation No. ( 2025:HHC:397 )
time specified in the proclamation, the Court can release the
property. If the person does not appear, the property will be at the
disposal of the State Government but will not be sold until the
expiry of six months from the date of the attachment. The
proclaimed person can appear within a period of two years and
show that he had not concealed himself to avoid execution of the
warrant or that he had no notice of the proclamation.
10. In the present case, the petitioner was declared a
proclaimed offender. He has not challenged the order declaring him
a proclaimed offender. It was held in Gaon Shiksha Samiti, Gram
Sabha Sabhad, Auraiya v. State of U.P., 2003 SCC OnLine All 359 that
when the basic order is not challenged, it is impermissible to
challenge and set aside the consequential order. It was observed.
“7. In C.P. Chitranjan Menon v. A. Balakrishnan, AIR 1977 SC
1720, the Hon’ble Supreme Court held that in the absence of a
challenge to the basic order, subsequent consequential order
cannot be challenged.
8. A similar view has been reiterated in Roshan
Lal v. International Airport Authority of India, AIR 1981 SC 597,
wherein the petitions were primarily confined to the
seniority list and the Apex Court held that challenge to
appointment orders could not be entertained because of
inordinate delay and in the absence of the same, validity of
consequential seniority cannot be examined. In such a case, a
party is under a legal obligation to challenge the basic order
10
Neutral Citation No. ( 2025:HHC:397 )and if and only if the same is found to be wrong,
consequential orders may be examined.
9. In H.M. Pardasani v. Union of India, AIR 1985 SC 781, the
Apex Court observed that if “petitioners are not able to
establish that the determination of their seniority is wrong
and they have been prejudiced by such adverse
determination, their ultimate claim to promotion would,
indeed, not succeed.”
11. In the present case, the basic order of proclamation has
not been challenged; therefore, the consequential order of
attachment cannot be challenged.
12. It was held in Pal Singh v. State, 1954 SCC OnLine Punj
120 that the High Court cannot exercise the jurisdiction under
Section 561-A of the Criminal Procedure Code (corresponding to
Section 482 of Cr.P.C., 1973) to set aside the attachment. It was
observed:
“Now, the question arises regarding the remedy available to
the petitioner after it has been held that the relief provided in
section 89 of the Criminal Procedure Code was not available
to him. In Hans Raj’s case [ A.I.R. 1934 Lah. 987], the
Honourable Judges were asked to interfere under section
561-A of the Criminal Procedure Code, but they declined to
do so in the peculiar circumstances of that case. I am,
however, of the opinion that section 561-A, Criminal
Procedure Code, can have no application to a case like the
present one where it is necessary to set aside the orders
made under sections 87 and 88, Criminal Procedure Code, as
the High Court has ample powers under section 439 to
interfere with the orders impeached and this is in
11
Neutral Citation No. ( 2025:HHC:397 )consonance with the course adopted in the Punjab and
Lahore cases mentioned above.”
13. It was held by the Bombay High Court in In re Gurunath
Narayan Betgori 1924 SCC OnLine Bom 191 that the High Court
should not exercise jurisdiction under 561A of Cr.P.C. to restore the
property after the expiry of two years from the date of order. It was
observed: –
“The petitioner before us made an application to the
Magistrate for the restoration of certain property, which was
attached under Section 88 of the Cr PC. The facts relating to
this attachment have been stated in the petition, and the
case of the petitioner was that as he was absent from the
village, he did not know anything about the attachment until
he came back to the village about the time he made the
application in 1923. Under Section 89 of the Cr PC, it is clear
that the application for the restoration of property has to be
made within two years from the date of the attachment. In
the present case, the attachment was so far back as 1918, and
the present application was made in 1923. The learned
Magistrate rejected the application having regard to the
provisions of Section 89 of the Cr PC. In appeal, the learned
Sessions Judge upheld that order.
2. In support of the application to this Court, it is urged that
we should exercise our inherent powers to secure the ends of
justice under Section 561-A of the Cr PC.
3. We do not think that we could make any order which
would conflict with the provisions of Section 89 of the Cr PC
in the exercise of our inherent power to which a reference
has been made. The order made by the Magistrate appears to
be correct. As the application has not been made within two
years from the date of the attachment, the Court has no
12
Neutral Citation No. ( 2025:HHC:397 )jurisdiction to make the order which the applicant wants for
the restoration of the property.
4. It is clear that his proper remedy is to apply to the
Government at whose disposal the property is at present
according to law. If the Government are satisfied that the
allegations by the petitioner are correct and that the justice
of the case requires that the property should be restored to
him, the Government may allow a restoration of the property
to the applicant, but we cannot help him, nor can we make
any recommendation to the Government as to the merits of
his application. We discharge the rule.”
14. Section 85 of CrPC provides that where the proclaimed
person does not appear, the property shall be at the disposal of the
government. It was laid down more than 150 years ago by Calcutta
High Court in Toolseeram Bera vs Golam Abed (05.03.1883 – CALHC):
MANU/WB/0070/1883 that when the property is at the disposal of
the Government, the Government is free to dispose it and it is
impermissible for the proclaimed person to claim the property after
the expiry of two years. It was observed: –
“1. The property, which is the subject of the present appeal,
was attached by the Magistrate under Section 172 of the Code
of Criminal Procedure (Act X of 1872) in consequence of the
proprietor Boidonath Dutt absconding when accused of
committing a criminal offence. The date of the attachment is
stated to be the 7th of August 1878. Subsequently, a third
person who held a decree against Boidonath Dutt proceeded
to execute it and attached the same property, which was sold
to the plaintiff on the 15th of January 1879. Notwithstanding
these proceedings, the attachment under the order of the
Magistrate still continued, and it appears that, as Boidonath
13
Neutral Citation No. ( 2025:HHC:397 )Dutt did not appear within the period specified in the
proclamation issued under Section 171, the property at once
became (to use the terms of Section 172) “at the disposal of
Government.” We understand by this expression that it came
under the absolute control of the Government to dispose of
or deal with it in whatever manner might seem most
appropriate and convenient. In April 1880, the Magistrate, at
a public sale, sold the rights of Government to the defendant.
We have, therefore, in the present suit to determine which of
these sales conferred the title to this property.
2. The Subordinate Judge has given the plaintiff a decree as
against the defendant because, in his opinion, the defendant
ought to have shown that the proclamation had been issued
before the plaintiff’s purchase and that the time specified in
it for Boidonath’s appearance expired before the plaintiff’s
purchase.
3. These reasons appear to us to be altogether unsound, for
the Subordinate Judge should have presumed in accordance
with Section 114(e) of the Evidence Act that the judicial acts
of the Magistrate were regularly performed, that is to say
that, unless the contrary was shown, the proclamation under
Section 171 had been properly issued; that Boidonath did not
appear within the time specified in the proclamation; and
that the property having become at the disposal of
Government, the Magistrate transferred it to the defendant.
As regards the title of the defendant, it appears to us that, so
long as the attachment by the Magistrate continued, no title
could be conferred by any attachment subsequently made.
Section 172 provides that if the person to whom the property
belongs does not appear within the specified period, his
property (not his right, title and interest) shall be at the
disposal of the Government, and from the terms of Section
173, it would appear that if the property has been sold,
although the person to whom it belonged might be able to
show to the satisfaction of the Magistrate that he was not at
fault, and therefore not properly responsible for the sale,
even then the sale is not to be set aside, and the property
14
Neutral Citation No. ( 2025:HHC:397 )restored, but the proceeds of the sale are to be made over to
the proprietor.”
15. A similar view was taken by the Bombay High Court in
Dattaji Nana Patil vs Narayanrao Bhimrao Patil
MANU/MH/0179/1922, wherein it was observed:-
1. The plaintiff in this suit seeks to recover certain property
as the adopted son of one Nana, the adoption having been
made to Nana by his widow, Laxmi, after his death. It
appears that in 1908, the plaintiff committed a criminal
offence and absconded. Measures were taken to secure his
attendance under the Code of Criminal Procedure. A
proclamation was issued on January 2, 1907, and an order for
sale and confiscation of his property was made on June 22 of
the same year. Under Section 89, it was necessary for the
plaintiff to appear within two years and move that this order
be set aside. He failed so to appear, and after certain further
proceedings, an order of confiscation was made on October
20, 1911. The effect of that order clearly was to put an end to
any title which the plaintiff might have had with regard to
the confiscated property, and unless he has in some way
acquired a title since that order, it is difficult to see how the
present suit can be maintained.”
16. A similar view was taken by Punjab & Haryana High
Court in Bachan Singh v. Punjab State, 1982 SCC OnLine P&H 8, and it
was observed:-
“14. From a perusal of S. 88, it is clear that it prescribes a
complete Code for attachment, release and forfeiture of the
property of a proclaimed offender. Sub-section (1) empowers
the Court to order attachment of the property, both movable
and immovable, of the proclaimed offenders. Sub-section
(6A) enables other persons to file claims, and subsections
(6B) and (6C) empower the Court to adjudicate upon them.
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Neutral Citation No. ( 2025:HHC:397 )
Sub-section (6D) entitles them to file a suit in case their
claims have been rejected wholly or partly. Under sub-
section (6D), even the proclaimed offender can claim the
property under certain conditions. Thereafter, sub-section
(7) authorises the State Government to deal with the
property attached under the foregoing provisions. It provides
that if the proclaimed offender does not appear within the
period mentioned in the proclamation, the attached property
shall be at the disposal of the State Government. The words
“at the disposal of the State Government” are important.
According to the Shorter Oxford English Dictionary (3rd
Edition), the word “disposal” means power or right to
dispose of. Thus, a right is vested in the State Government to
sell the property and retain the sale price. However, the
property cannot be sold for a period of six months from the
date of attachment or in case any claim is preferred or
objection made under sub-section (6) till that has been
decided.
15. Under section 89 of the Act, the proclaimed offender can
claim back the property or, if it has been sold, its net
proceeds after meeting the costs incurred if he appears
within two years from the date of attachment and shows to
the satisfaction of the Court that he did not abscond or
conceal himself for the purpose of avoiding the execution of
the warrant and that he had no notice of the proclamation.
No other person can claim back the sale price.
16. It is evident from the above sections that the property of
the proclaimed offender is not attached for his life only but is
forfeited to the State. If that was not so, the State would not
have been authorised to sell it absolutely after the expiry of
the specified period. I am, therefore, of the view that when
the State becomes entitled to sell the property of the
proclaimed offender of which he was the absolute owner, he
loses all interest therein, and his heirs cannot claim the
property after his death.”
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Neutral Citation No. ( 2025:HHC:397 )
17. In view of the above, the petitioner cannot claim the
release of the property attached by order of the Court without
getting the order set aside, when the property is at the disposal of
the Government; hence, the present petition fails, and the same is
dismissed.
18. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
3rd January, 2025
(Nikita)
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