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Delhi High Court on Proclamation of Abscondence.

Comment : In this case the court was dealing with a revision against attachment of salary/gratuity of a person declared P.O. The Court clarified that Gratuity can’t be attached owing to bar on that account, though salary can be attached and provisions of CPC need not detract here for CrPC Purposes

Narender Kumar Chawla vs State & Ors. on 7 January, 2011
Author: Shiv Narayan Dhingra

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: 16th December, 2010

Date of Order: January 07, 2011

+ Crl. MC No. 560/2010

% 07.01.2011 Narender Kumar Chawla …Petitioner Versus

State & Ors. …Respondents Counsels:

Mr. Laxman Singh for petitioners.

Mr. Sunil Sharma, APP for State/respondent.

Mr. J.S. Arora, Advocate for R-3 to 5

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporter or not? Yes.

3. Whether judgment should be reported in Digest? Yes. JUDGMENT

1. This petition has been preferred by the petitioner for setting aside an order dated 21st December, 2009 passed by learned Additional Sessions Judge in revision thereby setting aside an order of trial court dated 31st October 2008 and 8th July, 2009.

2. The learned MM after declaring the accused Anil Kumar Tekchandani as proclaimed offender initiated proceedings under Section 83 Cr.P.C and the property of accused was attached including immovable property, arrears of salary, provident fund and gratuity which he had to draw from his employer. The wife of accused filed objections and stated that the immovable property attached did not belong to accused but belonged to her and, therefore, could not be attached. The learned MM allowed these objections and lifted the attachment of immovable property. However, attachment Crl.MC 560/2010 Page 1 Of 3 qua remaining movable assets namely arrears of salary, gratuity and provident fund lying with the employer of accused were ordered to be attached. Wife of the accused assailed the order of learned MM attaching arrears of salary, GPF and gratuity before the Sessions Court by filing a revision petition. The learned Sessions Judge allowed the revision petition and observed that the gratuity and GPF of accused could not be attached in view of bar under Section 10 and 13 respectively of Payment of Gratuity Act and Employee Provident Fund and Misc Provision Act and the arrears of salary of the accused could be attached only as per provisions of Section 60 C.P.C. He also observed that the proclamation under Section 82(4) Cr.P.C can be issued only when the Court is satisfied that the accused was absconding or concealing himself from the court and the warrants cannot be executed. Mere fact that the accused could not be found was not enough.

3. I find that the order passed by learned Sessions Judge is partly contrary to law. As far as arrears of salary of a person are concerned, the same can be attached without referring to provisions of C.P.C. The attachment under Section 83 Cr.P.C is to enforce the attendance of a person. It had come on record that whereabouts of accused were not known. Even the plea taken by the wife in the objection was that the accused was not traceable. Under these circumstances, it could not be said that the court of learned MM was not satisfied that warrants against the accused were un-executable and accused was absconding from process of law. It is to be noted that the accused had not joined his office and was not drawing salary, arrears of salary, GPF or gratuity. He was absenting from work and had not contacted his family. The presumption regarding accused being dead can be drawn only after seven years of accused not being known even to those whom he is naturally to contact. Since no presumption about death of accused can be drawn up for seven years, it has to be presumed that the accused was alive and absconding.

Crl.MC 560/2010 Page 2 Of 3

4. The attachment of arrears of salary of accused can be done by the criminal court in all such cases where the accused is absconding to enforce attendance of the accused and provisions of C.P.C would not be applicable in criminal cases. However, the learned Sessions Judge rightly held that gratuity and Provident Fund could not be attached in view of statutory bar imposed by the provisions of Payment of Gratuity Act and Provident Fund and Misc Provisions Act.

 5. The petition is allowed to the extent that only salary/ arrears of salary are attachable. However, it is made clear that the petitioner is not going to get any amount out of attached amount.

 6. With above order, the petition stands disposed of. January 07, 2011 SHIV NARAYAN DHINGRA, J


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