Dip Narain Singh and Others vs The State of Bihar

B.S. Sinha, J.—By an order dated 17-11-1980 passed in supplementary of Hilsa Police Station case No. 10 (12) 79 under Sections 324, 307 of the Indian Penal Code the Sub-divisional Judicial Magistrate Hilsa. has ordered for the attachment of the properties of the petitioners.

The prayer in this application is to quash the order.

The relevant facts are that on informalities lodged by one Jagdish Singh on 14-2-1079 Hilsa Police. Station Case No. 10 (12) 7S was instituted. After investigation the police submitted a final form stating that the case was not true. A protest petition was filed against the final form, On 10-11-1980 the learned Magistrate accepted the final form. Thereafter on 15-11-1980 a petition was filed before the Magistrate by the investigating officer requesting that non-bailable warrants of arrest be issued against the persons accused in the aforesaid case as further investigation was being conduced under the orders of the Deputy Superintendent of Police. On this prayer non-bailable warrants were issued against the petitioners on 15-11-1980. It is stated that 18-11-1980 was the Sunday. On 17-11-1980 the investigating officer filed an application before the learned Magistrate stating therein that the accused persons were evading arrest therefore their properties should be attached. Copy of this petition is Annexure 3 on receipt of this petition the impugned order has been passed.

There can be no doubt that the order for attachement has been passed in complete disregard of the provisions of Sections 82 and 83 of the Code of Criminal Procedure. Section 82 provides that if a court has reason to believe that any person against whom a warrant has been issued is absconding or is concealing himself to avoid such execution the court may publish a written proclamation reacquiring him to appear at a specified place and at a specified time in not less than thirty days from the publishing of said proclamation. Thereafter Section 83 provides that the court issuing a proclamation u/s 82 may for reasons to be recorded in writing at any time after the issue of the proclamation, order the attachment of any property moveable or im-moveable or both belonging to the proclaimed person. I am not stating the provisions of these two sections in detail. Suffice it to say that before issuing a warrant of attachment a proclamation has got to be issued directing the person concerned to appear and such proclamation can only be issued if the court has reason to believe that the person against whom a warrant has been issued is absconding or is concealing himself to avoid execution of the warrant. I am unable to find any material on which in the instant case in less than forty eight hours the court was satisfied that all the petitioners were either absconding or concealing themselves to avoid execution of such warrants. I have, therefore, no hesitation in holding that the impugned order is in violation of law and is accordingly-quashed and set aside.

In the result, this application is allowed.